NARAYANASWAMI REDDI Vs. ALVRSTVEERAPPA CHETTIAR

JUDGEMENT

(1.) The petitioners were respondents I to 4 in an application filed by the decree-holder under Order 21, Rule 97, Civil Procedure Code, impieading them as obstructors to his taking delivery. They out forward the position that it was barred by a previous application under the same provision of law E.A. No. 59 of 1946 filed in a previous execution petition E.P.R. No. 158 of 1945 which was dismissed as "not pressed" on 17 March, 1947, and that the decree- holder's remedy was only by a suit within one year under Order 21, Rule 103, Civil Procedure Code. The District Munsiff negatived this contention and held that a fresh application for removal of obstruction, was maintainable.

(2.) The short relevant facts are these. The obstruction the decree-holder encountered took place on 26 December, 1945. He filed E.A. No. 159 of 1946 against the present petitioners under Order 21, Rule 97 on 26 January, 1946. This execution application after several adjournments was dismissed as "not pressed" on 17 March, 1947, as there was one day's delay in presentation, the limitation period being 30 days from the date of the obstruction under Art. 167 of the Limitation Act. The decree-holder filed a fresh execution petition without undue delay on 12 April, 1947, accompanied by this fresh execution application under Order 21, Rule 97. It is quite clear that had it not been for this technical bar of limitation, the decree-holder would have prosecuted his original application for removal of obstruction.

(3.) Mr. Ramachandra Aiyar for the petitioners has argued that the order dismissing the application as not pressed was an order passed against the decree-holder under Order 21, Rule 103, Civil Procedure Code. But this provision requires an order being passed under Order 21, Rule 98, 99 or 101. Order 21, rule98 requires the Court to be satisfied that resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation. Order 21, Rule 99 requires it to be satisfied that the resistance or obstruction was occasioned by any person other than the judgment-debtor claiming possession on his own account in good faith. In the present case the Court had no opportunity to direct its judicial mind to an order under Order 21, Rule 98 or 99, Civil Procedure Code, for the simple technical reason that the application under Order 21, Rule 97 was time-barred. Had the application been dismissed as "not pressed" by the decree-holder who had filed it in time under Order 21, Rule 97, the position might have been different; and the argument that the order dismissing the petition should be construed as one under Order 21, Rule 99 in view of the decree-holder's non-prosecution which was tantamount to a prima facie recognition of the obstructor's rights may perhaps have been tenable. Learned Counsel for the petitioners concedes that Order 21, Rule 103, Civil Procedure Code, comes into play or operation only in the event of an application being filed under Order 21, Rule 97, Civil Procedure Code. It is unnecessary for me to consider here the position of a decree-holder who withdraws an application under Order 21, Rule 97, Civil Procedure Code after he has filed it in time, in which case the Court has had the opportunity to direct its attention to passing an order within the scope of Order 21, Rule 98 or 99, Civil Procedure Code. There appears to be no specific provision in the Code under which any matter can be "dismissed" as " not pressed " though such an order is frequently passed on execution petitions which at the option of the decree- holder he does not press further for the time being. The more correct order on such an execution petition should be " not pressed--Struck off." The present E.A. No. 59 of 1946 was rightly " dismissed " however as it was time-barred. Order 23, Civil Procedure Code, which provides for the withdrawal of suits and other matters specifically excludes execution petitions by virtue of Rule 4 of that Order.