GNANASUNDARAM Vs. MURUGESA NAICKER

JUDGEMENT

(1.) This appeal is filed by the unsuccessful objectors before the lower appellate Court. The facts which are necessary for the disposal of this appeal can be briefly stated as follows :- One Pachiammal sold the property which is the subject matter of this second appeal on 02-11-1967 in favour of the respondent-plaintiff for Rs.7000. At the time of the sale, there was litigation pending in O.S. 523 of 1962 under which Pachiammal filed the suit against one Veerappa Asari and Nataraja Asari (father of the appellant) for a declaration of title and for recovery of possession. The said proceeding ended in compromise in S.A. 1175 of 1966 on 25-6-1970 between Pachiammal and the appellants' father and brother. As per the said compromise deed, Pachiammal's title was declared in respect of the said property. According to the respondent-plaintiff, by virtue of the sale deed dt. 02-11-1967, executed by Pachiammal, he is entitled to the property and his title was affirmed by the compromise decree and he stepped into the shoes of Pachiammal. Hence, he filed the execution petition on 11-10-1981, for delivery of possession in execution of the decree in O.S. 523 of 1962. The appellants herein obstructed delivery on the ground that the said Pachiammal executed a settlement deed in their favour on 6-9-1971, and that they are entitled to the property. The respondent-plaintiff contended that the settlement deed is not true and valid. The settlor Pachiammal had no right on that day to execute the settlement deed and that the obstruction is to be removed. To that effect, he has filed E.A. 1995 of 1981. The appellants herein contended that they are entitled to the property by virtue of the settlement deed dt. 06-09-1971. They also contended that they were not parties to the earlier compromise decree which is the subject matter of the execution proceedings. Further, neither the decree holder nor the auction purchaser is entitled to maintain the application under O.21, R.97, C.P.C. for removal of obstruction.

(2.) On the side of the respondent, he examined himself as P.W. 1 and Exs.P.1 to P.6 were marked. On the side of the appellants herein, the first appellant was examined as RW.1 and Exs.R.1 to R.3 were marked. The executing Court overlooking the objections of the appellants allowed the petition and directed removal of obstruction. The appellants were unsuccessful before the lower appellate Court. Hence this second appeal.

(3.) The appeal was admitted on the following substantial questions of law - 1. Whether in the law the Courts below were right in omitting to note that the title if any of the respondents had to be agitated before the proper forum and O.21, R.97, C.P.C. application by the respondent was not maintainable ? 2. Whether the Courts below were right in failing to see that O.21, R.97, C.P.C. would apply only against the judgment debtor and his transferees and it had no application when the objectors put forward rival title under the decree-holder herself ?