P VENKAMMA Vs. S VENKATA RATHNAM

JUDGEMENT

(1.) The present Civil Revision Petition will not retain me any longer inasmuch as it can be disposed of on the question of its maintainability.

(2.) The revision petitioner seeks to assail the order dated 30-11-2000 passed by the learned I Additional Junior Civil Judge, Ongole in E.P. No.513 of 1998 in O.S. No.5 of 1990. The Execution Petition was filed under Order 21 Rule 35 of the Civil Procedure Code (for short 'the Code') seeking delivery of the property which is the subject matter of O.S. No.5 of 1990. The revision petitioner who is the fourth respondent in the execution petition sought to resist that application on the premise that she was a third party and not being a party to the suit in O.S.5 of 1990 as she was in possession of the subject matter of the suit property independently in her own right cannot be ordered to be removed from her poscession. In fact when execution petition was filed seeking execution of the decree passed in O.S. No.5 of 1990 against the judgment debtors therein the revision petitioner came on record on her own accord after having filed an application in regard thereto and having been allowed by the Court. Ultimately after hearing both the parties, the Court below passed the impugned order allowing the E.P. and directing a fresh delivery warrant to be issued so as to deliver the property after removing the obstruction caused by the fourth respondent.

(3.) It is obvious that initially the executing Court directed a warrant to be issued for delivery and when the delivery could not be effected on the obstruction made by the revision petitioner and after the revision petitioner came as aforesaid on record on her own accord after hearing either side the Court below directed to issue a fresh delivery warrant for delivery of the property by removing the obstruction caused by the fourth respondent-revision petitioner. In usual course, when there was an obstruction by the third party for delivery, it .is open to the decree-holder to file necessary application under Order 21 Rule 97 of the Code for removal of the obstruction. If for any reason the third party who claims to be in possession of the property in his own right is dispossessed, it is open to him to come forward with an application under Rule 99 of the Code so as to maintain his possession. In either course an order is to be passed after conducting necessary investigation as envisaged under Rules 98 and 100 of Order 21 of the Code. In view of the amended provisions it is an appealable order. As per Rule 101 of the Code, all questions including the question relating to right, title or interest in the property arising between the parties to the proceeding shall have to be determined when such application is filed by either of the parties either under Rule 97 or under Rule 99 of the Code. Thus, the legal position is obvious, that order Becomes an appealable order.