The claim petitioners in E.A. Nos. 731 and 842 of 2006 in E.P. No. 95 of 1982 in O.S. No. 339/1969 on the file of the II Addl. Munsiff, Neyyattinkara, are the appellants in these Execution Second Appeals filed under Sec. 100 read with Order 42 R. 1 and Order 21 R. 103 C.P.C.

2. At the time of hearing on admission of these Second Appeals, the respondents/decree holders who had lodged caveats were also heard. These Second Appeals were heard on the following questions of law:-

i) Were the courts below justified in holding that while dealing with a petition under Order 21 R. 97

C.P.C. the executing court is not entitled to go behind the decree to record a finding as to whether the plaintiff/decree holder is entitled to delivery of possession as against a stranger obstructor ?

ii) In proceedings under Order 21 Rule 97 C.P.C. whether the courts below were justified in taking the view that where the delivery is obstructed by a stranger claiming a right independent of the judgment debtor, the burden is on the obstructer to prove that he has a better title than that of the decree holder ?

iii) In an adjudication under Order 21 Rule 99 C.P.C. at the instance of a stranger to the decree, while determining all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding, can the executing court which has not chosen to order removal of such stranger under O. 21 Rule 35 (1) C.P.C., proceed on the assumption that the decree holder need only show that the decree for possession is his title and it is for the stranger obstructer to prove that he has better title ?

THE FACTUAL SETTING

3. Theessential facts, shorn of unnecessary details are the following :-

The suit O.S. No. 339 of 1969 was filed by the predecessors-in-interest of respondents 1 to 5 in these appeals against the legal representatives of one Krishna Pillai for redemption and recovery of possession of an extent of 3.59 Acres of land comprised in Survey Nos. 131/8 and 137/2 of the former Marukil Village which is presently the Malayinkizh Village. The mortgage which was sought to be redeemed was a puisne mortgage of the year 1117 M.E. corresponding to the year 1942. The plaintiffs contended that their mother had derived title to the properties under a sale deed of 1110

M.E. corresponding to the year 1935. The plaintiffs mother who did not have possession over the properties had allegedly executed the puisne mortgage in favour of Krishna Pillai authorising him to redeem the prior mortgage. Subsequently, another puisne mortgage was executed in favour of the original second defendant by name Kuttan Nair who was the son of the said Krishna Pillai. It was alleged that Krishna Pillai had redeemed the prior mortgages and had stepped into the shoes of the mortgagee by reducing the property to his possession. The suit was thus filed by the plaintiffs against the legal representatives of Krishna Pillai for redemption of the puisne mortgage of the year 1117 M.E. and for recovery of possession. The defendants in the suit remained ex parte. A preliminary decree for redemption and recovery of possession was passed by the trial court on 30-09-1969. Later, a final decree was also passed on 8-10-1976 . Subsequently, execution was taken out. Out of the plaint schedule properties 2.97 acres are comprised in Survey No. 131/8 and the same is situated on the northern side of a road and the remaining 62 cents of land is comprised in Survey 137/2 and it lies to the south of the road. The two claim petitions were filed with regard to portions of the said 62 cents of land lying on the southern side of the road. The decree -holders have not yet taken delivery of the larger extent of the property lying to the north of the road. The contention of the claim petitioners in E.A. 731 of 2006 (appellants in Ext.S.A. 16 of 2008) was that the said 62 cents comprised in Survey No. 137/2 of Malayinkizhu Village situated to the south of the road b