PARAMASIVAM Vs. KALIYAN

JUDGEMENT

(1.) The petitioner in this civil revision petition is the third party to the R.C.O.P.No. 78 of 1985 on the file of the learned District Munsif, Thanjavur. The 1st respondent filed the said R.C.O.P against the 2nd respondent and obtained an order of eviction during the year 1982. Thereafter, an application for execution in E.P.No. 6 of 2000 was filed by the 1st respondent and the same was also ordered. In the meantime, the revision petitioner filed UFCFR No. 321 of 2000 on 22.1.2001 objecting the execution proceedings on the ground that he entered into an agreement with the 1st respondent for sale in respect of the petition mentioned property and has paid the entire sale consideration of Rs. 1,50,000 and the 1st respondent has also put the petitioner in possession and therefore the 1st respondent should not be given possession of the property. Since the 1st respondent denied the very agreement for sale, the petitioner filed O.S. No. 11 of 2001 before the learned Principal Sub Judge, Thajavur and the same is pending. However, the application filed by the petitioner under Order 21, Rule 97 Clause (1) of CPC was dismissed by the impunged order even without numbering the same and taken on file.

(2.) The learned counsel for the petitioner submitted that the order of the learned Principal Sub Judge in rejecting the application even without numbering the same is ex-facie illegal inasmuch as the petitioner was not given proper opportunity to put forth his case by letting in evidence and in any case as per the judgments of the Supreme Court reported in Bhahmdeo Chaudhary v. Kishikesh Prasad Jaiswal, and Babulal v. Raj Kumar, it has been held that an application for obstruction has to be adjudicated upon before it is dismissed in limine. Therefore, the learned counsel submitted that the rejection of the application filed by the petitioner under Order 21, Rule 97 Clause (1) CPC is patently illegal and therefore is liable to be set-aside.

(3.) The learned counsel for the 1st respondent on the other hand would submit that the civil revision petition itself is liable to be dismissed on the sole ground that the petitioner has not approached this court with clean hands and he has suppressed certain material facts before this court and has obtained an order of interim stay of all further proceeding in E.P.No. 6 of 2000. The alleged agreement of sale entered into by the 1st respondent with the petitioner is denied and at no point of time the 1st respondent has put the petitioner in possession. In fact the petitioner has filed a suit in O.S.No. 11 of 2001 before the learned Principal Sub Judge, Thanjavur. When the said suit is pending, the petitioner in order to drag on the execution proceedings has filed the application under Order 21, Rule 97, Clause (i) of CPC. While that being the position, the application was rejected after hearing the petitioner in person as to the maintainbility of the same and there is no question of giving an opportunity to the petitioner to lead evidence in the application as the petitioner has already approached the civil court for the same relief which the petitioner can very well agitate before the civil court. The learned counsel would further submit that the order under challenge gives reason for rejecting the application and therefore there is no notice necessary as has been held by the Supreme Court in the judgments reported in Badamo Devi and others v. Sagar Sharma, and in Lakshmi Narayanan v. S.S. Pandian. Therefore the learned counsel for the 1st respondent seeks for the dismissal of the revision petition.