SUNNY ABRAHAM Vs. MARIYAMMA YOHANNAN AND OTHERS

JUDGEMENT

(1.) The dismissal of an application filed under section 151 of the Code of Civil Procedure seeking stay of further proceedings in execution, is under challenge. A reading of the petition indicates that it is really one filed under Order 21 Rule 97 of the CPC raising obstruction to the delivery of property.

(2.) The 1st respondent herein obtained a decree for recovery of possession against respondents 2 to 4 herein. The 3rd respondent is the wife of the 2nd respondent and the 4th respondent is their son. The petitioner is none other than yet another son of respondents 2 and 3. The 1st respondent is the wife of the late brother of the 2nd respondent. Since the husband of the 1st respondent was employed in Germany and was residing there with family, the property in dispute was entrusted with the 2nd respondent who is his brother for looking after the same. Finally it necessitated the institution of a suit, after the demise of the 1st respondent's husband, for getting recovery of possession of the property. The suit was decreed. In the execution proceedings steps were taken by the 1st respondent decree holder to get the property delivered over. At that point of time petitioner who is yet another son of respondents 2 and 3 has filed his obstruction petition claiming that he is not a party to the suit and decree and hence he is not bound by the same. He also filed a suit as O.S No.10 of 2014 against the 1st respondent. An ex parte decree was passed therein restraining the 1st respondent from evicting the petitioner except under due causes of law. The execution court dismissed the obstruction petition. The same is under challenge in this original petition. The petitioner's contention is that the application filed by him though mentions the provision as section 151 of the CPC it is really an application under Order 21 Rule 97 of the CPC. If the application is treated to be one under the said provision, the order thereon is appealable under Order 21 Rule 103 of the CPC. However, on the facts and circumstances of the case, I am not constrained to relegate the party to his remedy of appeal. This original petition is being considered on its merits. The petitioner's claim is under the judgment debtors and hence obstruction is not maintainable.

(3.) As noticed supra, the contention of the petitioner is that he is a stranger to the decree not bound by the same and is entitled to have his rights adjudicated in execution proceedings before effecting delivery. Admittedly, the petitioner is the son of respondents 2 and 3 who are the judgment debtors 1 and 2 respectively. The only claim of the petitioner is that he had been residing along with his parents. He does not have any independent claim of possession apart from and under his parents. Even if it is assumed that the petitioner has such a claim, the same cannot be countenanced in view of the fact that the petitioner and the 4th respondent herein are the children of respondents 2 and 3 and have been residing along with their parents. There is no independent right for the petitioner. The petitioner comes only under the umbrella of his parents who are parties to the decree. As already noticed, the second judgment debtor is the decree holder's late husband's brother who was entrusted to look after the property when the first respondent decree holder and her husband were abroad.