N PALANIAPPAN Vs. G PANDURANGAN

JUDGEMENT

(1.) This Civil Revision Petition arises out of the dismissal of the rent control E.A. No. 45 of 1981 (in E.P. No. 25 of 1981) for removal of the obstruction. The main execution petition execution of the eviction order obtained in the rent control proceeding against two tenants, after the said eviction order has been confirmed by the superior Court. Since there was obstruction by the respondent to the delivery warrant ordered by the execution Court, the landlordpetitioner filed the above said E.A. for removal of obstruction. But the said E.A. was dismissed and the subsequent appeal R.C.A. No. 56 of 1982 on the file of Sub-Court, Cuddalore was also dismissed and hence he has filed this Civil Revision Petition.

(2.) The ground, on which both the Courts below dismissed the execution application is that the respondent herein is independently in possession of the building in question for a long time even before the petitioner filed R.C.O. No. 29 of 1977 and he is not claiming title to the property on behalf of the judgment-debtors. So holding, the lower appellate Court held that the remedy for the petitioner is only to sue for possession against the respondent.

(3.) It is clear that the Courts below in deciding this execution application, have not taken note of the amendments in the Civil Procedure Code made in this regard in the year 1976. Prior to the amendment the position was as follows: Under Order 21, Rule 97, the enquiry by the executing Court in an execution application for removal of obstruction was a summary one, concerned only with the question of present possession of the obstructor and under Rule 98 thereof if the resistance was by the judgment-debtor or some other person at his instigation, the Court had to direct that the applicant be put in possession; but under Rule 99 thereof, if the resistance was occasioned by a person other than the judgment-debtor, claiming in good faith to be in possession of the suit property on his own account or on account of a person other than the judgment-debtor, the Court would have to dismiss the application; Rule 100 thereof enabled a person, other than the judgment-debtor, if dispossessed either by a decree-holder or by a purchaser at a Court auction sale, to apply to Court complaining of the said dispossession and Rule 101 if the Court found that such applicant was in possession on his own account or on account of some person other than the judgment-debtor, it could direct that the applicant be put in possession. Such an order was conclusive as between the parties, except when a party, other than the judgment-debtor against whom the order was passed, under R.103, institutes a suit to establish his right to the possession claimed by him. Subject to the result of such a suit, the order was conclusive.