An obstructer's remedy is to apply under Rule 99 to the execution court after dispossession, and a separate suit before dispossession will not be maintainable.

This appeal is directed against the order of the Additional Sub Court, Kottayam in E.A. No. 940 of 1990 in O.S. No. 359 of 1980.

2. In execution of a decree obtained by the respondent in O.S. No.359 of 1980, 601/2 cents of land was brought to sale. When the Ameen of the court attempted to take possession of the property and deliver to the decree holder Bank, he was obstructed at the spot by the appellant. Appellant contended that he is a tenant of 2 acres 46.5 cents of land in Survey Nos. 738/14A, 738/14B and 738/16 of athirampuzha Village, Kottayam Taluk and that 601/2 cents of land brought to sale and sought to be taken delivery of is a part of the property included in his lease deed. Appellant also handed over to the Ameen, a copy of the alleged lease deed and a copy of the memorandum of appeal filed by appellant before the Land Reforms Appellate Authority against the order of Land Tribunal, which decided against the plea of tenancy set up by him. He also filed E.A. No. 940 of 1990 with the Ameen. Accordingly, the Ameen returned the warrant. The decree holder filed objection to this E.A. and requested by a second delivery of the warrant. The appellant contended that the court below, without issuing notice to him or properly considering the claim made by him, passed an order for issue of fresh delivery warrant for removal of the obstruction of the appellant.

3. The court below found that the appellant has no right to apply for adjudication of his right at this stage and that his remedy is to apply under Rule 99, Order XXI of Code of Civil Procedure to the execution court after dispossession. The court below also held that it was also open to him to file a suit for establishing his rights before dispossession. The court below found that the obstruction is without any bonafides and not in good faith and in that view of the matter; it ordered a fresh delivery warrant to remove the obstruction.

4. In this appeal, learned counsel for appellant challenged the order passed by the court below. It is contended that the order is against natural justice and in utter disregard to the provisions of Order XXI Rule 97 C.P.C. Learned counsel submitted that there is no finding by the execution court that the appellant has caused obstruction on behalf of the judgment debtor or a person claiming under the judgment debtor and that with out entering such a finding, the execution court has no jurisdiction to direct delivery of property under Order XXI Rule 95 of Code of Civil Procedure.

5. Learned counsel brought to my notice the provisions contained in Order XXI Rule 95 of CPC. And submitted that it is only in a case where the immovable property sold is in the occupancy of the judgment debtor or of some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the Court shall on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same and that since the appellant is not a person who comes under these categories of persons, the court is not competent to issue fresh warrant for delivery removing obstruction. Learned counsel also submitted that if obstruction or resistance is created by a stranger, there medy of the decree holder is to complain of such obstruction in which case, the court has to adjudicate upon the application. In the instant case, no proper adjudication was made and therefore the order of the court below is unsustainable.

6. In my view, the order passed by the court below is legally correct and does not call for any interference. A Division Bench of this court in Prabhakaran v. Kuttian Prakashan (1985 KLT 225) has held that a plain reading of the provisions of Order XXI makes it