JANAKI AMMAL Vs. GANAPATHI KONAR

JUDGEMENT

(1.) THE revision is filed by the decree-holder in O. S. No. 324 of 1982, on the file of the District Munsif's Court , tirukoilur.

(2.) THE, suit filed by the decree-holder was one for declaration of title and other reliefs. In the suit, there are three defendants. For reasons better known to the plaintiff, during trial, one of the defendants was removed from the party array. Later, the suit was decreed as prayed for. When execution was proceeded, defendant who was removed from the party array, filed the present application under Sec. 47, of the Code of Civil procedure, alleging that he is entitled to one half of the property for which decree has been granted in favour of the plaintiff. He said that he is entitled to the northern 47 cents on the basis of partition deed entered into before institution of the suit, and that since he is not a party to the proceedings, the decree is not binding on him.

(3.) IN the later decision Babulal v. Raj Kumar and others, j. T (1996)2 S. C. 716, their Lordships said that there is no condition imposed under Rule 97, C. P. C. , that the claim must be dispossession and only at that time, he can file the application. Their Lordships said, to have an adjudication, the party can be in possession, and even before he is dispossessed, he is entitled to make an application before the Executing Court to have his claim adjudicated. IN the said decision their Lordships have held thus: ' The controversy is no longer res INtegra. This Court in Bhanwar Lal v. Satyanarain & another, J. T. (1994)6 S. C. 626 considered the controversy and had held that even an application filed under O. 21, Rule 35 (3) or one filed under Sec. 47 would be treated as an application under O. 21, Rule 97 and an adjudication is required to be conducted under Rule 98. Dispossession of the applicant from the property in execution is not a condition for declining to entertain the application. ' The reasons are obvious. The specific provisions contained in O. 21, Rules 98, 101, 102 enjoin conduct of a regular adjudication, finding recorded thereon would be a decree and bind the parties. It would, therefore, be clear that an adjudication is required to be conducted under O. 21, Rule 98 before removal of the obstruction caused by the object or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under O. 21, Rule 103 and it shall be subject to an appeal Prior to 1976, the order was subject to suit under 1976 Amendment to C. P. C. , that may be pending on the date of the commencement of the amend provisions of C. P. C. was secured. Thereafter, under the amended Code, right of suit under O. 21, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under 0. 21, Rule 98 which is an order and is a decree under O. 21, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, the Executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance.' So, the preliminary objection taken by learned counsel for the petitioner no longer stands. The Executing Court has held that the decree is not binding on the first respondent herein and the decree-holder is entitled only for the remaining portion. That is an adjudication contemplated under O. 21, Rule 98, Civil Procedure Code, When that is so, under Rule 103 of o. 21, Civil Procedure Code an appeal alone lies and not a revision before the high Court.