The executing court failed to make a proper enquiry into the questions that arose in the applications under 0.21 R.101, greatly prejudicing the obstructors, and the matter was remanded for a fresh disposal after allowing both parties to mark the documents they wanted to rely on and after allowing them to adduce fresh evidence, uninfluenced by any observations contained in its order.

Headnote:
E.F.As. - Obstruction in Execution of Decree - 0.21 R.97 CPC - The court discussed the applications filed by the decree holder for removal of obstruction in execution of the decree. The appellants were obstructors whose objections were overruled by the lower court. The suit was for specific performance of a contract and was decreed. The obstructors claimed title to the property as assignees from Mukundan Pillai, based on an alleged oral lease. The lower court held that the purchase certificate issued by the Land Tribunal was vitiated by fraud and collusion, and that the obstructors had no locus standi to object to the execution of the decree. The points arising for decision were the maintainability of the E.As., the effect of lis pendens on the purchase certificate, the title of the obstructors, and whether the purchase certificate was vitiated by fraud and collusion.
Fact of the Case:

The E.F.As. arose from the common order passed by the Principal Sub Judge, Thiruvananthapuram in E.A. Nos. 19,17,16 of 1987 and two other E.As. filed by the decree holder in O.S. No. 31 of 1968 under 0.21 R.97 CPC for removal of obstruction in execution of the decree. The appellants were obstructors whose objections were overruled by the lower court. The suit was for specific performance of a contract and was decreed. The obstructors claimed title to the property as assignees from Mukundan Pillai, based on an alleged oral lease.
Finding of the Court:

The court held that the lower court failed to make a proper enquiry into the questions that arose in the applications under 0.21 R.101. The execution court did not mark any documentary evidence, did not allow oral evidence to be adduced, and freely referred to evidence on the original side to which the obstructors were not parties. The court concluded that the obstructors were greatly prejudiced by the procedure adopted by the executing court. The matter was remanded to the execution court for a fresh disposal after allowing both parties to mark the documents they wanted to rely on and after allowing them to adduce fresh evidence, uninfluenced by any observations contained in its order.
Issues: The issues included the maintainability of the E.As., the effect of lis pendens on the purchase certificate, the title of the obstructors, and whether the purchase certificate was vitiated by fraud and collusion.
Ratio Decidendi: The court held that the executing court failed to make a proper enquiry into the questions that arose in the applications under 0.21 R.101. The court concluded that the obstructors were greatly prejudiced by the procedure adopted by the executing court and remanded the matter for a fresh disposal after allowing both parties to mark the documents they wanted to rely on and after allowing them to adduce fresh evidence, uninfluenced by any observations contained in its order.
Final Decision: The E.F.As. were followed, the impugned common order was set aside, and the matter was remanded to the execution court for a fresh disposal after allowing both parties to mark the documents they wanted to rely on and after allowing them to adduce fresh evidence, uninfluenced by any observations contained in its order.

Judgment :-

S. Krishnan Unni, J.

These E.F. As. arise from the common order passed by the Principal Sub Judge, Thiruvananthapuram in E.A. Nos. 19,17,16 of 1987 and two other E.As. on 28.1.1998, filed by the decree holder in O.S. No. 31 of 1968 of that Court under 0.21 R.97 CPC for removal of obstruction in execution of the decree. The appellants are obstructors whose objections were overruled by the lower court.

2. I will give a very brief background which gave rise to these applications. O.S. No. 31 of 1968 was a suit for specific performance filed by the decree holder against two defendants, setting up an agreement for assignment of 2 acres of land in Sy. Nos. 512, 513 and 514 of Padikkattu Muri, Cheruvakkal Village. The suit was filed on 1.6.1968 and it was decreed on 26.2.1970. An appeal was filed before this court as A.S. No. 567 of 1970 against the said judgment and decree. The said appeal was heard on 5.7.1974 and the suit was remanded to the lower court for fresh disposal relating to the right of way. After the suit was remanded, an application was filed to amend the plaint as I. A. 5299(a) of 1974, and the suit was again decreed subject to the above amendment on 29.11.1974. Defendants again preferred an appeal (A.S. No. 47 of 1976) before this Court. When the appeal was taken for hearing, appellants' counsel reported no instructions and the appeal was dismissed on 23.10.1981. After dismissal of the appeal, E.P. 61 of 1982 was filed on 26.2.1982. The 2nd defendant who was a judgment-debtor died and respondents 2 to 7 were impleaded as legal representatives. The Court executed a sale deed in favour of the decree-holder and it was registered on 21.9.1985 as document No. 2576 of 1985 of Pattom Sub Registrar's Office. Pursuant to the sale deed, the decree-holder applied for delivery and on 6,11.1986 the court ordered the Amin to delivery the property. When the Amin went to the plot, there was obstruction with regard to portion of the property. The basis on which the obstructors claim title to the property was as assignee from one Mukundan Pillai, impleaded as 9th respondent. It would appear that Mukundan Pillai had obtained a purchase certificate as per order of the Land Tribunal on 24.4.1979 in S.M. 2 of 1979 in respect of 4 acre 9 cents in Sy. Nos. 509,512,513 and 514, on the basis of an alleged oral lease dated 10.8.1962in his favour under defendants 1 and 2. After obtaining purchase certificate he has sold portions of the property to various persons who have obstructed delivery of possession of the property. From the foregoing facts it is relevant to bear in mind that the suit was for specific performance of a contract, it was decreed and the document was executed by the court in the presence of respondents 2 to 7, the legal representatives of deceased 2nd defendant.

3. The lower court dealt with the five E. As. by the impugned common order. As I stated, appeals are filed only from E.A. Nos. 19,17 and 16 of 1987. There are no appeals preferred by the obstructors in E. A. 15 and 18 of 1987. In E. A. No. 19 of 1987, from which E.F.A. 11 of 1998 arises, the obstruction is with regard to 20 cents. The claimant is one Ayyappan Pillai. According to him, he got assignment of 1.25 acres of land from Mukundan Pillai (respondent No. 9) and has assigned a major portion of the land in favour of strangers barring 20 cents to which he claims right. In E. A.17 of 1987, from which E.F.A. 12 of 1998 arises, the claimant is one Sarojini Amma who contended that she obtained 1 acre from Mukundan Pillai, that she sold 40 cents of land to others and claimed to be in possession of the balance 60 cents the delivery of which she resisted. In E. A.16 of 1987 the claimant is one Sreekumaran Nair who claims to have purchased 45 cents from Mukundan Pillai and he offers resistance to the same. The claimants have produced the assignment deed taken by them from Mukundan Pillai as well as certified copy of the purchase certificate granted by the Land Tri

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1998 Supreme(Ker) 581

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