The judgment emphasized the importance of the specified persons initiating proceedings and highlighted the uniform view of courts in India against the maintainability of an application by a stranger before his dispossession.

1. This revision comes before a Division Bench having been referred by one of us on account of the practice prevalent in the Travancore area of permitting, what is called, anticipatory resistance or obstruction which was given effect to as cursus curiae in 1951 (6) D.L.R. Travancore-Cochin 434 which decision reserved the question of the applicability of that practice to proceedings started after the Indian Code of Civil Procedure was extended to this State on 1st April 1952.

2. The suit out of which these proceedings arise was between two Christian brothers. Recovery of a slice of immovable property with the building thereon was the relief sought for and granted. The basis of the action was trespass by the defendant. The case was fought in three courts and ultimately the plaintiff succeeded. Before execution was applied for, the defendant's son approached the trial court with a petition stating that a part of the site and a building thereon were given to him by his father under an arrangement some years after the litigation started and that bit of property and building are not liable to be surrendered in execution of the decree. The decree-holder opposed this application. The court below found against the petitioner and held that he was not in possession as alleged. It also held that in law the application was not maintainable. Hence this revision.

3. The question of fact cannot be and has not been canvassed before us. The question of law alone was presented before us. We say "presented before us" with a purpose because learned counsel for the petitioner did not canvass the correctness of the opinion of the court below. Indeed he was supporting that view as it suited his purpose because, if the court below had jurisdiction to entertain the application and determine it, the finding recorded by it on the question of fact would affect him. Learned counsel for the respondent also supports the opinion held by the court below. Thus an interesting situation of counsel, on both sides agreeing that particular view is the correct view to be taken has arisen and the court called upon not to choose between conflicting views urged by the contending parties but to consider whether the view that they conjointly contend for is correct.

4. S.74 of the Code of Civil Procedure provides that:

"Where the court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the court may, at the instance of the decree-holder or purchaser, order the judgement-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and may further direct that the decree-holder or purchaser be put into possession of the property."

In O. XXI, under the heading "sale of immovable property", the last two rules are Rr. 95 and 96. R. 95 provides that:

"Where the immovable property sold is in the occupancy of the judgment-debtor 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 R. 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."

R. 96 enacts that:

"Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under R. 94, the court shall on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and pr