ARIHANT BUILDERS PVT LTD Vs. MANJULA VITHALDAS KAPADIA

JUDGEMENT

(1.) Heard Counsel for the parties. Rule. Rule made returnable forthwith by consent. Mr. Sawant waives notice for respondents. As short question is involved, petition is proceeded for final hearing by consent, forthwith.

(2.) This petition under Article 227 of the Constitution of India, takes exception to the Judgment and order passed by the Small Causes Court at Bombay dated 17th April, 2002 in Misc. Notice No. 65/2002 in Obstructionist Notice No. 12 of 2000 in R.A.E.& R. Suit No. 1329 and 4389 of 1981. The Respondents-plaintiffs filed Suit for eviction against the tenant being R.A.E.&R. Suit No. 1329/4389 of 1981. The said suit was decreed in favour of the respondents. Consequent to decree becoming final, the respondents proceeded with execution thereafter. During the execution of the said decree, obstruction was caused by third parties. As a result, the respondents took out Obstructionist Notice. During the pendency of the said Obstructionist Notice, the petitioners filed Misc. Notice No. 65/2002 to join them as party to the proceedings on the assertion that the petitioners have acquired right, title and interest in the disputed property in relation to which decree has been passed in favour of the respondents. It is not necessary to advert to the background in which the petitioners claim to have acquired right, title and interest in the suit property as it is not relevant for answering the point in issue in the present petition. Suffice to observe that the application preferred by the petitioners for intervention in the Obstruction proceedings came to be rejected by the lower Court on the sole reasoning that the petitioners were themselves not in physical possession of the suit property. The Lower Court proceeded to hold that only a person in physical possession of the suit property can cause obstruction during the execution of the decree. For that reason, the application preferred by the petitioners came to be rejected. This view taken by the lower Court is the subject matter of challenge in the present petition.

(3.) Having considered the rival submissions, I have no hesitation in taking the view that the opinion recorded by the lower Court is manifestly wrong. Infact the same is contrary to the spirit of the scope of issues to be answered in the obstructionist proceedings by the Executing Court. However, if any guidance is required in support of this, we may usefully refer to Rule 97 and 101 of Order XXI of Civil Procedure Code.