IMPORTANT POINTS
A decree which was passed for partition and separation falling under Section 37(2) of the Kerala Act is not a decree for possession and hence cannot be executed against a stranger and the decree holder cannot maintain an application under Rule 97 C.P.C.. There is no scope for any resistance or obstruction to be adjudicated under Rule 97 of Order 21 C.P.C. with respect to a decree passed under Section 37(2) of the Kerala Act. The legal position would be different when the decree for partition and separate possession falls under Section 37(1) of the Kerala Act and it can be executed even against an obstructor/resistor by maintaining an application under Rule 97, provided that the obstructor/resistor will get the right to defend the same under Rule 101 of Order 21 C.P.C., as if it were a suit against him.

JUDGMENT :

A simple decree for partition and separation was sought to be executed against a stranger/3rd person for getting possession of Government land having an extent of 1.65 Acres. The State Government is not in the party array of the suit for partition. There is no substantial prayer in the suit for declaration of right, title or interest over the property in favour of the plaintiff, but a mere suit for partition alone was filed incorporating the Government land having an extent of 1.65 Acres, alleging that he is in possession of the said Government land. When it was sought to be executed, the appellant herein, a third party, came up with a claim petition disputing the right, title and interest of the plaintiff over the Government land and alleged that he is in possession and enjoyment of the said property. The trial court dismissed the claim petition treating the same under Rule 97, 98 and 101 of Order 21 C.P.C. It was confirmed in appeal, against which the obstructor/claim petitioner came up with this appeal.

2. The following questions came up for consideration:

(1) Whether it is permissible to execute a simple decree for partition and separation against a third person for getting possession ?

(2) Is it permissible to exhaust the remedy under Rule 97 of Order 21 C.P.C. in a simple decree for partition and separation ?

(3) Is there any change in the legal position, if the decree is not a simple decree for partition and separation, but also for possession?

(4) Is there any scope for filing a claim petition either under Rule 97 or under 101 of Order 21 C.P.C. by a third person/obstructor/resistor ?

(5) Whether an obstructor or resistor can maintain an application under Order 21 Rule 97 C.P.C., if not, what is the remedy available to him and what would be the effect of bar under Rule 101 after the amendment of Rule 103 of Order 21 C.P.C. ?

3. Both the courts below committed a very serious mistake without addressing the scope and ambit of Rule 97, 98 and 101 of Order 21 C.P.C. The trial court considered the application under Rule 97, 98 and 101 of Order 21 C.P.C. That itself amounts to a wrong perception. The very same mistake was also committed by the first appellate court without referring to the relevant provisions under which the application would fall. Both the courts below proceeded with the matter under the impression that it is a claim petition filed by a third party-claimant.

4. An application under Order 21 Rule 97 C.P.C. can be maintained only by a 'holder of a decree for possession of immovable property' or by an 'auction purchaser of immovable property in court sale'. An obstructor/resistor or a third person cannot maintain an application under that rule. The scheme of O.21 C.P.C. and the various rules there under are instrumentalities in the hands of a decree holder for execution of a decree, barring the provision made there under to protect and adjudicate the interests of a third person, who is not bound by the decree, such as Rule 58 and right to get any claim adjudicated under that rule. Necessarily, it should be understood that R.97, like other provisions under O.21 C.P.C., is one of the modes of execution available to a decree holder to execute a decree for possession. If it is not utilized or exhausted in proper cases at proper time, the resultant effect would be the dismissal of the execution proceedings. As such, it is incumbent on the decree holder to apply under R.97 of O.21 C.P.C., when there is obstruction or resistance offered by any person. Failure to exhaust the said remedy would result in dismissal of execution proceedings. When such an application is moved, then only the obstructor or the resistor will get the right to defend the application raising their objection. Thereon, the executing Court is bound to proceed under R.97 (2) of O.21 C.P.C. to adjudicate the issue. It is well within the jurisdiction of execution Court to adjudicate the sustainability of objection raised by the obstructor/resistor. B