M CHOCKALINGAM Vs. VEERABADRA CHETTIAR

JUDGEMENT

(1.) This civil revision petition is posted before this Court since the scope or Order 21, rule 101 of the Code of Civil Procedure as amended by Central Act CIV of 1976 arises for consideration for the first time in this Court.

(2.) The decree-holders-petitioners in this revision obtained a decree in OS. No 3328 of 1966 on the file of the City Civil Court, Madras for recovery of possession against Appa Rao and others defendants). They took the decree in execution thereafter. In the course of the execution proceedings, the respondents herein obstructed delivery of possession and the decree-holders filed an application E. A. No. 4137 of 1966 under Order 21, rule 97, Civil Procedure Code, complaining of obstruction and praying for removal of the obstruction. The respondents herein who are the obstructors, appeared in the said proceedings and the executing Court decided the question in a summary manner as was the position before the amendment of the provisions of the Code of Civil Procedure by the Central Act CIV of 1976, drastically changing the provisions of Order 21, rule 97, Civil Procedure Code, in this regard. The executing Court came to the conclusion that the obstruction was not without lawful cause and dismissed the application filed by the decree-holders. The decree-holders preferred an appeal against this order. The appellate Court realising the change in the law that such applications have not to be summarily dealt with but to try the same as a suit, offered to the parties to remand the matter to be tried as a suit. But it seems the parties were equally in confusion and without realising the import of the provisions they failed to avail the opportunity afforded to them. Then the lower appellate Court refused to send the matter to be tried afresh on request by the appellant as the obstructors objected to that course being adopted, that is to say remanding the matter for giving opportunities to the parties to lead fresh evidence.

(3.) The amended provision of Order 21, rule 101 lays down as follows: