ARJUNAN ACHARY Vs. THANKAMMA

JUDGEMENT

(1.) The petitioner, a stranger to the decree, resisted the execution of the decree obtained by the 1st respondent for possession of immovable property. An application was filed under O.21 R.97. The executing court passed an order on her application thus:-

(2.) The main contention advanced by the learned counsel for the petitioner is that the appeal before the Sub Court was not competent. He contended that an appeal is available only under O.21 R.103 which reads thus:-

(3.) The scheme of O.21 R.97, 98 and 101 would show that a holder of a decree for possession of immovable property may make an application to the Court executing the decree if he has any complaint of any resistance offered by any stranger to the execution of the decree or when there is any obstruction from any other quarter. In that application the court has got jurisdiction to decide all questions including the question relating to right, title or interest in the property arising between the parties to the proceeding, or their representatives and which are relevant for adjudication of the application. After the adjudication under O.21 R.101, the court has to pass under O.21 R.98 either (a) making an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application or (b) pass such order as, in the circumstances of the case, it may deem fit. Thus the final order in a petition for removal of obstruction is what is contemplated under O.21 R.98. The proceedings initiated under O.21 R.97 are required to be enquired into under O.21 R.101 and disposed of under O.21 R.98. The adjudicatory process under O.21 R.101 contemplates an application of the mind, a consideration of the claim on the merits and a conclusion based on reasons. Even then, there may be cases where the court is constrained to reject the application without any adjudication at all. Where no adjudication is required in any case, and the application has to be dismissed without any investigation, still the court has the duty to pass final orders under O.21 R.98. It is the order under O.21 R.98 that disposes of the application under O.21 R.97. R.103 provides an appeal against that order. If this is the policy and purpose of the provisions, as I understand it, it follows that the order passed by the court in this case, dismissing the application for removing obstruction under O.21 R.97 was an order under O.21 R.98, appealable under O.21 R.103.