AMMASAIATHAL ALIAS CHINNAMMAL Vs. A SIVAPRAKASH

JUDGEMENT

(1.) THIS revision has been directed against the order passed in E.A.No.18 of 2007 in E.P.No.83 of 2003 in O.S.No.457 of 1999 on the file of Additional District and Sessions Judge(Fast Track Court No.V),Coimbatore at Tirupur. E.A.No.18 of 2007 was filed under Order 21 Rule 97,98 and 101 of CPC by the third party in O.S.No.457 of 1999 who is the wife of the first defendant who died pending trial in O.S.No.457 of 1999.

(2.) O.S.No.457 of 1999 was filed for Specific Performance of Contract by the plaintiff in O.S.No.457 of 1999 under the sale agreement entered into between the first defendant in O.S.No.457 of 1999 and the plaintiff therein under the sale agreement dated 16.8.1996. The first defendant remained exparte in the suit. His sons alone were impleaded as D2 and D3 in O.S.No.457 of 1999.

(3.) THE learned counsel appearing for the revision petitioner relying on a decision reported in Noorduddin-v- Dr.K.L.Anand (1995) 1 Supreme Court Cases 242) would contend that in an application filed under Order 21 Rules 97,98,100,101 and 103 CPC as amended by Code of Civil Procedure in the year 1976. It is the duty of the execution Court to adjudicate upon the rights of the parties who come before the executing Court under Order 21Rules 97,98,100 CPC. THE short facts of the said ratio are that the appellant's father Nanu, Rehmatullah and one Wazu are brothers and their cousins Munshi and Banda who have migrated to Pakistan and their properties were declared as evacuee properties by proceedings dated 12.3.1956,by the competent authority had passed an order separating the respective shares held by the evacuees, Munshi and Banda as well as the father of the appellant, Rehmatullah and Wazu and allotted specific items to Nanu and in the auction held on 14.4.1967 in respect of evacuee properties, the respondent Dr.K.L.Anand had become the highest bidder and sale certificates issued on 26.9.1968. THE sale certificate was challenged by Rehmatullah and his brother Wazu in Writ Petition NO.960 of 1969 before the Delhi High Court contending that the property sold pursuant to the declaration of those properties being evacuee on 6.2.1956 were not, in fact, correct. THE said writ petition was dismissed by the learned Single Judge which was confirmed by the learned Division bench in LPA No.95 of 1978 dated 14.9.1982. THEreafter Rehmatullah impleaded 5th respondent but no relief sought for against him. In the meanwhile, the respondent filed a suit No.270 of 1970 in the District Munsif Court, Delhi against Rehmatullah and Wazu for possession of the properties. THE said suit was dismissed and on appeal the division bench of Delhi High Court, decreed the suit for possession and the decree had become final. THE respondent filed execution petition for taking possession of the said properties resisting the execution, the appellant filed an application under Order 21 Rule 97 and 98 r/w 151 of CPC before the executing Court contending that his father and members of his family had not migrated to Pakistan though the custodian had declared certain ancestral properties to be evacuee properties of Munshi and Banda which were sold to the respondent and that the plaintiff Dr.K.L.Anand has obtained collusive decree against others. THE executing Court had dismissed the application on the ground that the dispute was adjudicated by the High Court in RFA NO.305 of 1986 and that, therefore, the claim is no longer tenable. On revision in the impugned order dated 11.7.1994, the learned Single Judge dismissed the revision holding that the controversy was concluded in W.P.No.960 of 1969 wherein the appellant's father was arrayed as respondent and that, therefore, he cannot make the objections. While disposing of appeal in favour of the appellant, the Honourable Apex Court has laid down the guide lines for disposing a petition under Order 21 Rules 97,98,100 ,101,103 and 104 CPC which are as follows: