KAVIL RADHA AMMA Vs. KODIYERI GOPALAKRISHNA MENON

JUDGEMENT

(1.) Petitioners are auction purchasers of the property in the final decree passed in OS.No.76/92, a suit for partition. In execution of the decree when delivery of the property was sought for it was objected to by some strangers, respondents 3 and 4 in the present writ petition. The petitioners moved two applications before the execution court for impleading the obstructors in the execution proceedings and for getting delivery of the property from them removing the obstruction. Exts.P2 and P3 are the applications moved by the petitioners. Ext.P2 was filed quoting Order 1 Rule 10 and Ext.P3 application under Order 21 Rule 17 of the CPC. The learned Sub Judge dismissed both the applications by a common order finding that both the applications are not maintainable. Propriety and correctness of those orders are challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India.

(2.) I heard the counsel on both sides. From the submissions made and the facts and circumstances presented, I find the applications have been dismissed on technical ground without adverting to the grievance canvassed by an auction purchaser who had expended more than Rs.4,70,000.00 to claim benefits under the decree. True the applications have been filed quoting a wrong provision. It is for the court to examine which provision of law is applicable if at all any mistake is committed by a party. The learned counsel for the petitioner invited my attention to Bhanwar Lal Vs. Satyanarain and another [AIR 1995 SC 358] and Brahmdeo Chaudharay Vs. Rishikesh Prasad Jaiswal and another [AIR 1997 SC 856] in which the apex court has stated in unequivocal terms that the wrong provision quoted by a party is not a ground to deny relief and the substance and the relief claimed has to be adjudicated with reference to the Rule applicable. Petitioners should have moved an application under Order 21 Rule 97 CPC for removing the obstruction in delivery of the property. That they have not done so, apparently, was a mistake. The petitioners should have been given an opportunity to correct that mistake and proceed against the obstructionists. The other respondents in the petition cannot claim any interest once the property had been put in auction and purchased by the petitioners, and so much so, the adjudication of the sole question with reference to the obstruction caused, as between the petitioners and the obstructionists, who are respondents 3 and 4 in the writ petition, alone arise for consideration. Setting aside Ext.P4 order, I direct the court below to treat the petitions filed by the petitioners as an application filed under Order 21 Rule 97 CPC and dispose them after adjudication in accordance with law. The petitioners shall be given an opportunity to make corrections in the petition, if necessary, to raise further allegations, if any, required to consider such petitions as an application under Order 21 Rule 97 CPC. Writ petition is allowed.