K C VASUMATHY AMMA Vs. MAKKANCHERRY JANAKI AMMA

JUDGEMENT

(1.) The revision petition is filed against the order dated 12-2-1996 in E.P. No. 221/899 in O.S. No. 2/1958 on the file of the Sub Court, Kozhikode.

(2.) The short facts leading to the revision petition are as follows :- Judgment-debtor is the revision petitioner. After the death of the original revision petitioner, C.M.P. No. 2314/2003 was filed for impleading the legal heirs of the original revision petitioner as additional 2nd revision petitioner and additional respondents 2 to 7. After issuing notice to the supplemental respondents the petition for impleading is allowed. As per the decree, item No. 104 was sought to be delivered. The delivery was obstructed. No delivery affected and the E.P. was dismissed. Subsequently the E. P. was restored to file. By the impugned order symbolic delivery of item Nos. 31 to 34 and actual delivery of item No,. 104 were ordered. The petitioner contended that there was obstruction to delivery of possession to the decree holders and the procedure for removal of obstruction is under Order XXI, Rule 97, which was not resorted to by them. Hence, the impugned order is illegal.

(3.) Learned senior counsel appearing for the revision petitioner Sri. P. N. K. Achan submits that the obstruction made by the revision petitioner has been brought to the notice of the Court. Without considering that the order under challenge has been passed. As per the provisions of Order XXI, Rule 97, if any obstruction is made it shall be adjudicated by the Court. Instead the decree holders filed an application under Order XXI, Rule 35(3) CPC. Learned counsel also submits that delivery ordered as per the impugned order is against the provisions contained under Order XXI, Rule 97, CPC.