LEKSHMI AMMAL Vs. TRAVANCORE DEVASWOM BOARD

JUDGEMENT

(1.) The revision petitioner is a decree holder who has been baulked of the delivery ordered in her favour by reason of the success of a so-called obstruction petition filed by the respondent, a stranger to the decree.

(2.) The petitioners application for delivery in execution was made as long ago as 12-1-1124 (28-3-1948). It suffered many vicissitudes through which it is fortunately not necessary to pursue it for the present purpose. Suffice it to say that on 23-11-1953, the executing court made an order directing delivery on 4-1-1954, and notice that the property would be delivered on that date was issued to the respondent Devaswom Board (which had, at an earlier stage, made an unsuccessful attempt to intervene on the strength of a purchase from a prior obstructor) in compliance with R.289 of the rules in the Travancore Civil Courts Guide, the rules of practice then in force. On receiving notice the respondent Board came forward with the present obstruction petition on 21-12-1953. The petition was numbered as C.M.P. 19270 on the file of the Additional Munsiff, Trivandrum (the executing court) and on 11-11-1957, that court passed an order upholding the so-called obstruction of the respondent on the ground that the respondent was in possession of the property on his own account and disallowing delivery to the decree holder. It is this order that is assailed in revision.

(3.) Now, from the facts stated, it is apparent that the respondents so-called obstruction petition was really no obstruction but was an anticipatory objection to delivery by a person who was a stranger to the decree. It is settled law that such a petition does not lie and that before delivery has been actually effected a stranger to a decree can approach the court for an adjudication regarding his right to possession only when, as a result of resistance or obstruction offered by him, the decree holder applies under O.21 R.97, C.P.C. for the removal of the obstruction. When delivery has been actually effected he can come forward under O.21 R.100 complaining of the dispossession and seeking restoration. Until delivery is actually effected his safeguard lies in resistance or obstruction and he cannot come to court objecting to the delivery before it is even attempted. This is the view taken by all the High Courts in India, and the practice formerly obtaining in the Travancore jurisdiction of entertaining what were termed ante delivery petitions was discountenanced by a Division Bench of the T-C. High Court in George v. Varkey ( 1952 KLT 660 ) which decision was reaffirmed by a Full Bench of the same Court in Padmanabhan v. Narayanan (1955-K. L. T. 413).