DONNA ROSSI KITCHEN LINE Vs. D HARIKRISHNAN

JUDGEMENT

(1.) This Civil Revision Petition is filed by the petitioner/obstructor in E.P. No. 2549 of 2012 in O.S. No. 1620 of 2009 on the file of the City Civil Court, Chennai. The Court below dismissed his application in E.A. No. 2139 of 2013 filed under Order 21 Rule 97 CPC. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent.

(2.) The first respondent as the plaintiff filed a suit in O.S. No. 1620 of 2009 against the second respondent herein seeking for delivery of possession of the suit property. On 30.06.2011 the trial court decreed the suit as prayed for and directed the defendant to quit and deliver vacant possession of the suit property within a period of two months. Aggrieved defendant filed an appeal in A.S. No. 394 of 2011 on the file of the City Civil Court, Chennai. By a judgment and decree dated 17.09.2012, the First Appellate Court dismissed the appeal, thereby confirming the judgment and decree of the trial court. Further appeal before this Court in S.A. No. 1264 of 2012 also came to be dismissed on 09.01.2013. In the meantime, the decree holder filed execution petition in E.P. No. 2549 of 2012 seeking to execute the said decree. The petitioner before this Court filed E.A. No. 2139 of 2013 under Order 21 Rule 97 CPC by claiming himself as an obstructor and sought for conducting an enquiry and to uphold his legal right as sub-tenant. The said application was resisted by the first respondent herein/decree holder by specifically contending that the same is not maintainable under Order 21 Rule 97 CPC apart from opposing the said application on merits as well. The Court below held that the application is maintainable and however found that on merits the petitioner herein is not entitled to the relief sought for on merits. Accordingly the Executing Court rejected the said application.

(3.) The learned counsel appearing for the petitioner fairly submitted and conceded that the application filed by the petitioner under Order 21 Rule 97 CPC is not maintainable and in fact he has also cited a judgment which in fact was placed before the Lower Court Anwarbi vs. Pramod D.A. Joshi, 2000 10 SCC 405 to say that the application was not maintainable. The learned counsel also placed a decision of the Hon'ble High Court of Andhra Pradesh in : CDJ 2012 APHC 890 (T. Srinivas and others vs. E. Ravinder and others) to contend that an application under Order 21 Rule 97 CPC is maintainable only at the instance of the decree holder and not by an obstructor. Thus he contended that the Court below ought not to have gone into the merits of the matter and given a finding when the application filed by the petitioner itself is not maintainable. Therefore he is aggrieved against the finding rendered by the Court below on the merits of such application.