R DAKSHINAMOORTHY Vs. PADMAVATHY AMMAL

JUDGEMENT

(1.) This Civil Miscellaneous Appeal by (sic) obstructor in execution, is against the order (sic) dismissal dated 11.4.1989 in E.A. No. 135 of 1987 in E.P. No. 22 of 1987 in O.S. No. 123 of 1985 on the file of Subordinate Court Pattukottai.

(2.) The respondent herein is the plaintiff-decree holder. When the decree for possession of the suit house, dated 17.3.1987 was sought to be executed on 7.9.1987, the petitioner obstructed and gave obstruction memo to the bailiff, but since the latter refused to receive the same, the petitioner filed the abovesaid E.A. under Section 151 of the Civil Procedure Code on or about 14.9.1987 for reception of the said obstruction memo, on the ground that he is the absolute owner in possession of the suit property under a will and that the judgment-debtor had no right over the same. The decree holder-respondent resisted the said E.A. stating that the appellant had no right over the said property. She filed her counter and the execution court below held a detailed inquiry in the matter regarding title and possession of the appellant petitioner. The appellant also examined himself as P.W.1 and one other witness P.W.2 and also marked four documents on his side. The respondent also examined her husband as D.W.1 and marked as many as eleven documents. The court below treated the said proceeding as one under Order 21, Rule 97, C.P.C. for removal of obstruction and held that the obstructors had no title or possession to the said property and dismissed the said petition. The aggrieved obstructor has filed this Civil Miscellaneous Appeal. No doubt he has earlier filed C.R.P. in this Court against the said dismissal, but as it was not maintainable he withdraw it and filed this Civil Miscellaneous Appeal.

(3.) In this C.M.A. his main contention is that the Court below should not have treated the said E.A. proceeding as one for removed of obstruction under Order 21, Rule 97, C.P.C. According to the learned Counsel for the appellant, the court below should have only seen whether there was prima facie case in the claim made by the appellant, and, if so, the court should have directed the bailiff to receive the obstruction memo, leaving the respondent to file an application for removal of obstruction under Order 21, Rule 97, C.P.C. and then only the court will have jurisdiction to go into the question conclusively whether the obstruction is justified. Secondly, the learned Counsel for the appellant submitted that even assuming the procedure adopted by the court below was right, the decision of the court below, on facts also, was wrong.