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J.R.VORA
BHAVNAGAR TRANSPORT COMPANY – Appellant
Versus
VALMIKBHAI HIMATLAL PATEL – Respondent
Key Points: - The judgment holds that the right to make an application to remove obstruction is given only to the holder of the decree or a purchaser of the property in execution of the decree; third parties have no locus standi to file such an application. (!) - It states that the executing court is required to adjudicate the application when filed under Rule 97(1), but the process is permissive, not mandatory, and only the decree holder or permitted persons may initiate; the court cannot act suo motu or adjudicate obstructor claims absent a proper application by the permitted party. (!) (!) (!) - The/view from this decision confirms that when an obstructor declares himself, the remedy lies with the decree holder or purchaser to file Rule 97(1) and the court proceeds under Rule 97(2); third parties cannot compel the court to adjudicate on their rights under Rule 97(2) absent a decree holder’s application. (!) (!) - The appellate court held that the order rejecting the obstructor’s application under Rule 97 is not appealable, as the procedure under Rule 97 is permissive and the remedy lies with the decree holder; the second appeal was dismissed with no order as to costs. (!) (!)
( 1 ) IN peculiar circumstances of the matter controversy surfaces whether a third party Obstructor and in possession of immovable property of which recovery of possession is sought by warrant in the execution proceedings by decree holder can claim to have his right adjudicated upon by executing Court on preferring an Application alleged to have been filed under Order 21 Rule 97 of the Civil Procedure Code and all the more when decree holder chooses not to complain before executing Court about removing such obstruction and files no application to remove obstruction under Rule 97 of Order 21 of C. P. C.
( 2 ) THE suit being Regular Civil Suit No. 523 of 1972 was filed by one Patel valmikbhai Himatlal and others against the defendant Patel Mohanbhai Muljibhai and others for the recovery of the possession of rented premises. The suit was decreed and it appears that the matter was pursued by the defendants till Supreme court but they failed and thereafter original plaintiff Patel Valmikbhai and other filed an execution Application before the Civil Judge, J. D. , at Bhavnagar, being civil Regular Execution Application No. 38 of 1998 for recovering the possession of the sui
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