K.K. PURUSHOTHAMAN Vs. SANTHAMMA

JUDGEMENT

(1.) Is there any bar for the Execution Court to treat an application filed to record resistance to the delivery of property as one for removal of obstruction under Order 21, Rule 97 of the Code of Civil Procedure, 1908 ['the CPC' for short] ?

(2.) An extent of 4 cents of land in R.S. No. 175/13 of Karumadi Village in Ambalapuzha Taluk was attached before judgment in a suit filed by the first respondent against the second respondent. The suit in O.S.No.186/2009 on the file of the court of the Subordinate Judge of Alappuzha was one for realisation of a sum of Rs.4 lakhs. The suit was decreed ex-parte against the second respondent by judgment dated 6.11.2009 which has become final and the attachment of the property made absolute. The property attached was brought to sale in E.P. No. 165/2010 and the first respondent decree holder herself bid the property in auction held on 18.3.2014. The auction was confirmed for a sum of Rs.5,01,000.00 and a sale certificate issued to the first respondent enabling her to apply for delivery of the property. The first respondent filed E.A. No. 325/2014 for delivery whereupon the execution court ordered the property to be delivered over. It was at this juncture did the appellants file E.A. No. 435/2014 to record their resistance to the proposed delivery of possession of the property to the first respondent.

(3.) The property taken in by the sale certificate and directed to be delivered over is a 'Guru mandiram' which is a mantap wherein the statue of Sree Narayana Guru is housed. The appellants asserted that they are the 'believers, devotees and worshipers' of Sree Narayana Guru entitled to resist the delivery of possession of the property. The court below treated E.A.No.435/2015 as one under Order 21, Rule 97 of the Code of Civil Procedure and adjudicated the questions relating to the right, title and interest in the property. The court below by the order impugned dismissed E.A.No.435/2015 and directed the property to be delivered over to the auction purchaser after removing the obstruction. The appellants have come up in appeal under Order 21, Rule 103 of the Code of Civil Procedure contending inter alia that the procedure adopted by the court below is irregular. It is the case of the appellants that only an application filed by the auction purchaser could be treated as one for removal of obstruction. The appellants also maintained that they being the believers, devotees and worshippers of Sree Narayana Guru are entitled to resist the delivery of possession of the property.