Strangers to a decree can resist execution of an eviction order and request adjudication of their claim prior to the actual delivery of possession to the decree holder, in accordance with the scheme of Order XXI Rule 97 of the C.P.C.

JUDGMENT :

The petitioners are strangers to the decree who have offered resistance to the execution of the decree obtained by the decree holder against the judgment debtor. In R.C.P.No.103/2018, an eviction order was passed by the Rent Control Court against the tenant of the building. The tenant defaulted paying the rent in time. Hence an eviction order was passed by the Rent Control Court under Section 12 of the Kerala Buildings (Lease and Rent Control) Act, 1965. Evidently, the eviction order was passed for non-payment of admitted arrears of rent within the permissible time in accordance with Section 12(3) of the Act. The tenant is a huge defaulter. The total rent due from the tenant exceeds Rs.12,15,000/-.

2. The case of the appellants is that they being inmates of a hostel and boarding house, they cannot be evicted except in accordance with the due process of law. The executing court dismissed the obstruction raised by the appellants. An appeal was taken before the first appellate court. It was also dismissed confirming the order of the executing court. Relying on Prabhakaran v. Kuttian Prakashan [1985 KLT 225], Arjunan Achary v. Thankamma [1988 (2) KLT 857], Augustine & Company v. Damodaran [1991 (2) KLT SN 16], Devassia Joseph v. Vysya Bank Ltd. [1990 (2) KLT 339] and Moideen v. Kadeesa Umma [1991 (1) KLT SN 57] the first appellate court held that an obstructer who is not a party to the suit cannot object to the delivery in the execution court before delivery is effected. Hence, the first appellate court held that the remedy of an obstructer is to file a suit before delivery or file an application under Rule 99 of Order XXI C.P.C. for re-delivery of the property.

3. Heard the learned counsel for the appellants and the learned counsel for the respondents.

4. Relying on Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another [1997 KHC 804], the learned counsel for the appellants contended that the appellants who are strangers occupying the decretal premises in their own right and who have offered resistance to the execution of the decree obtained by the decree holder against the judgment debtor is entitled to request the executing court to adjudicate upon their resistance and obstruction without being insisted upon that first they must handover possession and then only move an application under Order XXI Rule 99 of the C.P.C.

5. The executing court has negatived the contentions on merits holding that the appellants are claiming under the judgment debtor and they have no independent right to raise an obstruction in execution of a decree for eviction against the tenant. Although the first appellate court agreed with the executing court, the appeal was dismissed holding that the appellants have no locus standi to get adjudication of their claim prior to the actual delivery of possession to the decree holder in the execution proceedings. In Brahmdeo Chaudhary's case (supra), the Apex Court held that the claim of stranger obstructionist would only be considered after he has lost his possession to decree holder would result in patent breach of principles of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree holder. In the light of the decision referred to above, the stranger obstructionist is entitled to raise his objection before he has lost his possession to the decree holder in accordance with the scheme of Order XXI Rule 97 of the C.P.C. and the preceding Rules thereof. It is true that, the finding of the first appellate court in this regard is apparently illegal and is unsustainable in law. However, the first appellate court has agreed