AMMAKANNU AMMAL Vs. NATESA THEVAR DIED

JUDGEMENT

(1.) IN this second appeal a nice point arises in the administration of the execution chapter of the Civil Procedure Code. The question is about how adequate Order 21 of the Code could be to tackle a situation which had arisen in this case.

(2.) THE case is one where the decree-holders had obtained a mandatory injunction against their neighbour. THE mandatory injunction was to demolish a superstructure in the suit land. THE judgment-debtors did not comply with the decree. When the decree-holders proceeded to file an execution petition, the judgment-debtor.s mother who had trespassed into the superstructure in the meantime, offered obstruction. THE decree-holders filed an application for removal of the obstruction. THE executing Court ordered the application and ordered the obstructor to remove the obstruction, holding that she was a trespasser. She filed a statutory suit for establishing her title to the superstructure. This suit failed in the trial Court and in the first appellate Court. In this second appeal filed by the obstructor her learned counsel put forward more than one contention. THE first was that the Courts below were in error in holding that the obstructor had no title to the superstructure. This contention can be easily disposed of THE basis of the obstructor.s claim was that she got the property under an oral partition. She relied on a partition chit. Both the Courts below had rejected this chit as a pure fabrication. Since this finding is supported by materials on record, the learned counsel could not make good his contention that the Ending is erroneous in point of law.

(3.) IT was urged by the obstructor.s learned counsel that the decree-holder.s application for removal of obstruction did not lie under Order 21, rule 97, which was the provision of law relied on in that application. This is a technical objection which no Court countenances nowadays. For, the principle is that the mere citation of a provision of law is of no significance. A wrong provision of law may have been quoted. Or no provision of law at all may have been quoted in the application. These laches are immaterial. The thing to be inquired into is whether the Court, has the requisite power to grant the kind of relief asked for by the suitor. We must, therefore, turn our attention to examining the relevant provisions. The obstructor.s contention is that Order 21 contains no provision to enable the holder of a decree for mandatory injunction to apply to the executing Court for the removal of obstruction. Order 21, rule 97, it was pointed out, has pertinence only to a case where a decree for possession under execution encounters an obstruction by a third party obstructor. IT was contended that the language of Order 21, rule 97 was not capable of any wider application to include, for instance, a motion for removal of obstruction filed by the holder of a decree for mandatory injunction.