VIJAYARAGHAVAN Vs. MUHAMMAD

JUDGEMENT

(1.) THE obstructor is the revision petitioner.The suit which resulted in the decree was one for recovery of possession of one item of property with residential building thereon.The property belonged in jenmom to Chovvakkaran Puthiypurayil Tharwad of the plaintiff.In 1949 the karnavan of the tarwad one Mamali Keyi granted lease of the property to one Sulaiman.The succeeding karnavan granted a kuzhikanam to the said Sulaiman under Ext.A -23 dated 31st October 1969.Sulaiman by Ext.B -6 registered assignment deed,transferred the leasehold rights to Kalathil Chathukutty,the father of the revision petitioner.Chathukutty was in possession and was residing in the property till his death in 1958.A suit O.S.361/55 was filed in the Munsiff Court,Kozhikode -I against Chathukutty for recovery of the property.Chathukutty was the 4 th defendant in the suit.That suit was later transferred to Munsiff Court,Kozhikode -II and was re -numbered as O.S.307/61.On the death of Chathukutty,his children excepting the revision petitioner were impleaded in the suit.Chathukutty by means of a Will had bequeathed all his interests in the property to the revision petitioner and as such he was the only person who was entitled to succeed Chathukutty so far as his interests in the property were concerned.The decree was put in execution and when the Amin came to the property to effect delivery,the revision petitioner obstructed.He offered resistence on the ground that he was the exclusive heir entitled to succeed to the property.The Amin visited the property on 23rd September 1969 and in view of the obstruction,he filed a report in the court on 24th September 1969 stating that when he went to the property to effect delivery he found the revision petitioner residing in the house and he had offered resistence on the strength of a Will executed by Chathukutty which was shown to him.The same day the decree -holder filed his application under Order 21,rule 97 complaining of the resistence and praying for effecting delivery to him with police help.The same day the court passed orders allowing the decree -holder's application.The order reads:"

(2.) LEARNED counsel appearing for the revision petitioner points out that the order is unsustainable on the short ground that the learned Munsiff has not complied with the mandatory provisions of Order 21,rule 97(2)wherein it is provided that on receipt of an application under Order 21,rule 97 the Court should fix a day for investigating the matter fend summon the party against whom the application is made,to appear and answer the same."It is a mandatory provision and has to be complied with before final orders are passed on the application;but in the present case without even ordering notice to the obstructor,orders were passed on the same day of the filing of the application.The respondent's answer is that no notice was necessary since the obstructor's interests were represented by the other heirs of Chathukutty who had duly been impleaded in the suit.In other words,the argument is that the obstructor is also bound by the decree.In support of the position, Delai Malike v. Krushna Chandra Patnai A.I.R.1967 S.C.49 and Mohd.Sulaiman Sahib v. Mohd.Ismail Sahib 1966 S.C.W.R.133 were cited.The former is a case where,on the death of one of the appellants his heirs applied of bringing themselves on record as his legal representatives and one of the heirs was omitted to be impleaded.The court allowed it saying that in the absence of fraud or collusion the omission need not be taken serious note of.The court observed:

(3.) THIS also does not apply to the present case since other heirs could not have properly represented the interests of the obstructor here,and they could not have even taken any genuine interest as they had already been divested of their rights in the property by means of the Will.The only person interested in the pro­perty was the obstructor and none else.Learned counsel also relied on Order 21,rule 35 and stated that where the decree is for delivery of immovable property possession thereof shall be delivered to the party in whose favour it has been adjudged,by removing any person bound by the decree who refuses to vacate the property.This rule proceeds on the assumption that the person who claims to be in possession is one bound by the decree.But we have seen that it is not so.The obstructor is not bound by the decree since he is not a party to the decree.Even if the application is construed as one falling under Order 21,rule 35 the court cannot divest itself of its duty to issue notice to the obstructor.