MANIMARAN Vs. GANDHIMATHI

JUDGEMENT

(1.) THE petitioner is third party. THE first respondent filed a suit in O.S.No.32 of 2004 on the file of the Sub Court, Dharapuram for specific performance of contract on the strength of agreement for sale executed by the second respondent who is none other than mother of this petitioner. THE suit was decreed and the first respondent levied execution proceedings and got sale deed executed in his favour through Court. THEreafter, he filed E.P. No.76 of 2007 for delivery of the properties through Court. While the Court bailiff went to the suit property for delivery, this petitioner obstructed delivery and he filed an application under Order 21 Rule 97 r/w Section 151 CPC requesting the Court to exclude 'B' Schedule property from the 'A' Schedule property which is the suit property. It is his claim that on the strength of an unregistered partition, the 'B' Schedule property fell to his share in the year 2002 and from the said period, he has been in possession of the property. He also produced xerox copies of the unregistered partition deed dated 30.06.2002, the xerox copies of Family Card and also the Voters Identity Card.

(2.) THE learned Subordinate Judge, Dharapuram rejected the application without taking the same on file by observing that the petition is not maintainable in law and mere possession shall not entertain him to make obstruction when his mother entered into the contract with respect to the property standing in her name exclusively. Hence, the petitioner has come forward with this revision petition before this Court.

(3.) THE Apex Court has directed the executing court to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the order challenged and neither the executing court nor the High Court in revision had considered the objection of the appellant against execution on merits and that the executing court must first adjudicate upon objections of the appellant on merits under Rule 97 (2) r/w Rules 101 and 98 instead of insisting upon first handing over possession and then moving of application by the appellant under Rule 99, that words "any person" in Rule 97(1) includes such a stranger as the appellant and if the resistance or obstruction found to be unjust and unwarranted, then the same would be removed by the Court.