K A PRABHAKARAN Vs. KUTTIAN PRAKASHAN

JUDGEMENT

(1.) The only point for decision in this Civil Revision Petition at the instance of an obstructor against the execution of an order passed by the Rent Control Court is as to whether an obstruction petition is maintainable under O.21 R.97 CPC. The 1st respondent in this CRP. obtained an order against the 2nd respondent for eviction of building No. 10/108 of Tellicherry Municipality in RCP. No. 9/1981 on the file of the Rent Control Court, Tellicherry. In execution the revision petitioner offered resistance setting up a claim of tenancy of the building under the predecessor-in-title of the 1st respondent landlord, and filed a petition purporting to be under O.21 R.97 C.P.C. for adjudication of his right to possession under a title different from the title of the judgment debtor. The court below dismissed the application on the ground that the petition at the instance of the obstructor in execution is not maintainable under O.21 R.97 CPC. It was also found on the merits of the case that the obstructor has failed to prove his right to possession.

(2.) O.21 R.97 CPC. provides for an application by the decree holder for removal of resistance offered by any person against the decree holder obtaining possession of the property. When such an application is filed by the decree holder, all questions (including questions relating to right, title and interest in the property) arising between the parties are to be determined by the execution court as provided for in O.21 R.101 of the CPC. as amended by the Code of Civil Procedure Amendment Act 1976. R.99 of O.21 CPC. provides for an application for restoration of possession by any person other than the judgment debtor after he is dispossessed in execution of a decree to which he is not a party. Such an application by a dispossessed third party is also to be inquired into and adjudicated upon as provided for in R 101 of O.21 CPC. Orders passed under R 98 or R.100 on applications filed under R.97 or under R.99 have the same force and are subject to the same conditions as to appeal or otherwise as if the order concerned were a decree passed in a suit (vide R.103 of O.21 CPC.) A plain reading of the aforesaid provisions of O.21 makes it clear that no application for adjudication of the right, title and interest of an obstructor would lie before he is dispossessed in execution of a decree to which he is not a party. If, however, he is dispossessed, he is given a remedy under R.99 of O.21 CPC. to apply for restoration of possession to the execution court. The execution court on such application is required to adjudicate the question of the right, title and interest of the dispossessed obstructor and pass appropriate orders under R.100 and such order of the execution court is to be treated as a decree for all purposes including for the purpose of appeal and second appeal. The only remedy of a dispossessed obstructor is to apply under R.99 to the execution court and have his claim adjudicated upon by the execution court itself. A separate suit at his instance after dispossession will not be maintainable in view of the aforesaid provisions of the CPC. as amended in 1976. This does not, however, preclude the obstructor from having recourse to a civil court by way of a separate suit before he is dispossessed in execution of a decree to which he is not a party. No application for adjudication of the rights of the obstructor would, however, lie under O.21 R.97 CPC. in anticipation of his dispossession in execution of a decree to which he is not a party.

(3.) In Mammo v. Krishnan ( 1978 KLT 901 ) Vadakkel J. following the decisions in George v. Varkey ( 1952 KLT 660 ), Padmanabhan v. Narayanan ( 1955 KLT 413 ) and Lakshmi Ammal v. Trav. Devaswom Board ( 1959 KLT 458 ) has decided that no application at the instance of an obstructor would lie before his dispossession in execution of the decree. His remedy is to resist execution and, in spite of his resistance if he is dispossessed, to apply for restoration of possession as provided for in R.99 of O.21 CPC. Kader J. in Chandrika v. Gangadharan ( 1983 KLT 953 ) and Paripoornan J. in Raman v. Karthikeyan ( 1984 KLT 1071 ) have expressed the same view. Kader J. in Chandrika v. Gangadharan has followed the dictum laid down by a Full Bench of the Madhya Pradesh High Court in Usha Jain v. Manmohan Bajai (AIR 1980 M.P. 146) overruling its earlier decision in Bhagwat v. Kasturi (AIR 1974 M.P. 26) taking a contrary view. We are in respectful agreement with the view expressed by the learned Judges of this Court in the decisions aforesaid that no application under O.21 R.97 CPC. would lie at the instance of an obstructor in anticipation of his dispossession in execution of a decree to which he is not a party.