SANKARAN Vs. PANDYVEL

JUDGEMENT

(1.) The appellants are the third parties to suit O.S.No.769 of 1981 laid by the first respondent herein against the respondents 2 to 8 for delivery of possession. It is not in dispute that the said suit laid by the first respondent was decreed. When the first respondent sought to execute the decree in O.S.No.769 of 1981, in E.P.No.307 of 1992, the appellants herein obstructed the same under Order 21 Rule 97 of the Code of Civil Procedure on the ground that they have put up buildings in the said suit property, incidentally contending that the right of the first respondent over the suit property had not been concluded in view of the pendency of S.A.No.334 of 1988 on the file of this Court. However, the learned Additional District Munsif, Madurai, taking note of the fact that the appellants herein have no right over the said property dismissed the claim of the appellants herein by order dated 26.10.1998 in E.A.No.707 of 1995, and the same was, on appeal, confirmed by the learned Principal Subordinate Judge, Madurai, by decree and judgment dated 23.3.1999 in C.M.A.No.66 of 1998. Hence, the present civil miscellaneous second appeal.

(2.) This appeal was admitted on the following substantial questions of law: (i) Whether the learned Sub-Judge is wrong in law in proceeding to decide the matter finally when the lower Appellate Court is aware of the fact that the entire proceeding is one under Order 21 Rule 97 of the Code of Civil Procedure which mandates that the proceedings has to be tried as a regular suit and in a summary manner? (ii) Whether the learned Sub-Judge had erred in law in not remitting the matter to the executing Court for affording an opportunity to the parties, particularly to the obstructors/ appellants to substantiate their independent rights claimed by them and thereby proceeding with the matter as a regular suit?

(3.) It is now reported that the second appeal, viz., S.A.No.334 of 1988 relied upon by the appellants was also dismissed by this Court by judgment dated 10.7.2001. Therefore, the right claimed by the first respondent under the decree and judgment in O.S.No.769 of 1981 has become final. Under such circumstances, particularly when the appellants failed to establish their rights with regard to the properties while obstructing the execution of the decree and judgment in O.S.No.769 of 1981, the question of holding a full-fledged trial in the execution proceedings does not arise.