S ARUMUGAM Vs. KRISHNAMMAL

JUDGEMENT

(1.) This revision has been filed against the order passed in R.E.A. No. 87 of 2010 in R.E.A. No. 71 of 2009 in R.E.P. No. 80 of 2008 in O.S. No. 30 of 2005 dated 28.06.2010 by the lower Court in dismissal of the said petition.

(2.) Heard Mr. P.Mani, the learned Counsel for the Petitioner and Ms. P.T. Asha , the learned Counsel for the first Respondent. No appearance for the second Respondent.

(3.) The learned Counsel for the Petitioner would submit in his argument that he is a third party to the decree passed in O.S. No. 30 of 2005 and he has filed an application in E.A. No. 88 of 2010 claiming the title to the property subjected to the execution and also for the stay of delivery of possession of the schedule lands to the first Respondent decree holder and he has also asked for the stay of delivery of possession ordered in the E.P. He would also submit that in spite of the obstruction to the delivery proceedings, the lower Court had ordered for Police Aid and delivery of possession was also ordered without removing the obstruction. He would submit that the lower Court without resorting to the procedure contemplated under law, had ordered delivery of possession and therefore, it should have been stayed. Further, he would submit that the Petitioner himself has filed a suit for partition and separate possession of his half share, in the suit properties subject matter of the execution in O.S. No. 184 of 2008, before the Sub-Court, Krishnagiri and it is also pending adjudication and in the mean while, if delivery has been ordered in favour of the first Respondent, the right of the Petitioner in the partition suit will be prejudiced and therefore, he would submit in his argument that the delivery of possession ordered by the Court shall be stayed. He would also submit in his argument that the Petitioner was in possession of the properties mentioned in E.P., and obstructed to the delivery ordered by the lower Court in E.P. No. 71 of 2009 on 07.04.2010 and the amin of the Executing Court has also reported the obstruction by the Petitioner on 12.04.2010 and an application to removal of obstruction and sought for police help was filed by the first Respondent on the same day and the Executing Court ordered delivery with police protection on 15.04.2010. Against which, the Petitioner filed a revision in C.R.P.S.R. No. 49376 of 2010 and an order was passed directing the Petitioner to file claim petition under Order 21 Rule 97 Code of Civil Procedure on 08.06.2010. Accordingly, he filed a claim petition in R.E.A. No. 88 of 2010, and an application in R.E.A. No. 87 of 2010 for stay of the delivery till the disposal of the claim petition on 14.06.2010. The execution Court has posted the applications on 21.06.2010 for filing counter and however in the meanwhile the amin effected delivery of the property in the absence of the Petitioner who is the owner of the property and subsequently on 28.06.2010, the stay application in R.E.A. No. 87 of 2010 was dismissed and the claim petition in R.E.A. No. 88 of 2010 was subsequently posted to 16.07.2010 for enquiry. He would further submit in his argument that the lower Court ought to have stayed the delivery of possession but it had permitted the first Respondent to execute the decree despite a claim petition has been filed by the Petitioner as directed by this Court. He would also submit that this Court in M.P. No. 1 of 2010 had granted interim stay against recording of delivery since delivery have been effected to the first Respondent. He would bring it to the notice of this Court, various judgments of this Court to the effect that the Executing Court should firstly adjudicate the claim under Order 21, Rule 97 Code of Civil Procedure and thereafter, to pass an order in the execution petition. He would cite a judgment of Hon'ble Apex Court, in between Brahmdeo Choudhar v. Rishikesh Prasad Jaiswal,1995 AIR(SC) 856 in support of his case. He would also submit in his argument that the delivery ordered during the pendency of the claim petition filed under Order 21, Rule 97 Code of Civil Procedure, would be against the provisions under Order 21, Rule 101 Code of Civil Procedure that the claim petition be disposed first and thereafter, to proceed with the execution petition. He would also draw the attention of the Court to a judgment of Hon'ble Apex Court, in between Babulal v. Rajkumar and Ors., 1996 AIR(SC) 2050 He would also submit in his argument that the lower Court was wrong in ordering delivery of possession during the pendency of the claim petition, R.E.A. No. 88 of 2010 and again erred in not granting stay in the petition filed in R.E.A. No. 87 of 2010. He would also submit in his argument that the lower Court had finally dismissed the stay application in R.E.A. No. 87 of 2010, which is against the provisions of law and therefore the order passed by the lower Court should be interfered and the revision be allowed after giving suitable directions.