VARADARAJA IYER Vs. KUNHIPPA AND CO

JUDGEMENT

(1.) This second appeal by the first defendant was admitted on the following question of law formulated at page 4 of the memorandum of second appeal:

(2.) The facts of the case are not in dispute. The 1st defendant filed OS 137/1961 on the file of the Munsiff's Court, Palghat against the 2nd defendant for recovery of possession of the suit property, a commercial site alleged to have been trespassed upon by the 2nd defendant. The suit was decreed on 30-10-1963 The 1st defendant thereafter filed EP 82/1968 for delivery of the property in execution of the decree. But at the time when delivery was sought to be effected, the present plaintiff offered resistance on 22-9-1968 claiming tenancy under the 2nd defendant judgment debtor. The 1st defendant thereupon filed EA 383/1969 on 20-3-1969 under O.21 R.97 CPC for delivery of the property after removal of obstruction by the plaintiff. Ext.A3 is a certified copy of EA 383 of 1969. The present plaintiff opposed the application setting up a leasehold title under the 2nd defendant and claiming fixity of tenure under S.106 of the KLR Act as it then stood. By Ext.Al order dated 13-2-1975 the execution court ordered removal of obstruction of the plaintiff and delivery of the property to the 1st defendant. The execution court found that the lease set up by the present plaintiff was one obtained pending suit and was hit by the rule of lis pendens. Ext. Al order of the execution court passed under O.21 R.98 CPC. as it then stood was confirmed in revision by this Court in CRP No. 684 of 1975. Ext.X1 dated 23-9-1977 is a certified copy of the order in the CRP confirming Ext.Al order of the execution court directing delivery of the property after removal of obstruction by the present plaintiff. It is long afterwards on 20-7-1978 that the present suit ia filed under O.21 R.103 CPC (as it stood prior to the amendment by Act 104/1976) to set aside the summary order Ext.A1 and for an injunction to restrain the 1st defendant from executing the decree and taking delivery of the property in pursuance to the said order. The Trial Court decreed the suit on the ground that Ext.A3 application under O.21 R.97 was filed beyond the period of 30 days from the date of obstruction and was hence barred under Art.129 of the Limitation Act, 1963. This decision of the Trial Court was confirmed in appeal by the lower appellate court. It is against this that the 1st defendant decree holder in OS 137/1961 has come up in second appeal.

(3.) An order under R.98 is summary and is subject to the results of a suit under R.103 of O.21 CPC as it stood prior to the CPC Amendment Act, 104/1976. A transferee pendente lite is not entitled to obstruct or resist execution of the decree is clear from R.102 of O.21 CPC. R.101 of O.21 substituted by the CPC Amendment Act 1976 requires all questions, including questions relating to right, title and interest in the property arising between the parties to a proceeding on an application under R.97 or R.99, and relevant to the adjudication of the application, to be determined by the court dealing with the application and not by a separate suit. An order made under R.98 or R.100 is to have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree (vide the amended R.103 of O.21 CPC). Thus, after the amendment of the CPC. by Act 104/1976 that came into force on 1-2-1977, there is no provision for a separate suit to set aside an order passed by the execution court under O.21 R.98 CPC. All questions including questions relating to title are to be determined by the execution court itself and the order passed on such determination has got the force of a decree for the purpose of appeal and enforcement.