An application under Order XXI Rule 97 of the CPC is not maintainable by a party who is not in possession of the property, reinforcing precedent on the adjudication of rights during execution proceedings.

JUDGMENT :

EASWARAN S., J.

The Execution Second Appeal arises from an order in E.A.No.38/2011 in E.P.No.247/2010 in O.S.No.299/2003.

2. The brief facts necessary for the disposal of the appeal are as follows:

O.S.No.299/2003 is a suit for mandatory injunction directing the State Government to return the property which was relinquished in favour of the Government on 05.09.1967. Finding that the purpose for which the relinquishment was made did not happen, the suit was instituted. The suit was decreed directing the State Government to hand over the possession of the property. For execution of the judgment and decree dated 13.07.2005 in O.S.No.299/2003, the appellant preferred E.P.No.247/2010. In the execution petition, an application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (CPC) was preferred by the 1^st respondent raising an objection against the execution of the decree on the ground that the decree holder did not have any right, title and interest over the decree schedule property. The application was initially dismissed on the ground that the same is not maintainable inasmuch as the claim petitioner was not in possession of the property. Aggrieved, A.S.No.53/2013 was preferred. The order was confirmed. Aggrieved by the dismissal of A.S.No.53/2013, Ex.S.A.No.27/2013 was preferred. By judgment dated 11.04.2014, the appeal was allowed and the matter was remanded back for consideration of the executing court on the ground that the application under Order XXI Rule 97 read with Rule 99 of CPC, is maintainable. The appellant challenged the order passed by this Court in Ex.S.A.No.27/2013, by SLP No.15148/2014 and by order dated 20.01.2017, the Supreme Court dismissed the special leave petition. However, it was ordered that the executing court can take a decision on the application on merits. The question of law raised in the application was left open. Consequent to the order passed by the Hon’ble Supreme Court, E.A.No.38/2011 was partly allowed by order dated 03.10.2017 by the Munsiff Court, Manjeri. Aggrieved by the order, A.S.No.19/2023 was preferred by the appellant, which was also dismissed on 19.08.2023 and hence, the present appeal.

3. On 08.02.2024, when the appeal was admitted, this Court framed the following substantial questions of law:

1. Whether the present petition, at the instance of the claim petitioner, who is out of possession, is maintainable under Order XXI Rule 99 of the Code of Civil Procedure ?, otherwise, whether the present petition is maintainable under Order XXI Rule 97 of the Code of Civil Procedure ?

2. What is legal effect of not pressing a previously instituted suit, without liberty to file another suit, when identical reliefs are asked for in a subsequent suit ?

3. Whether the present petition is barred under Order XXII of the Code of Civil Procedure and the relevant rules thereunder?

4. Heard, Sri.T.Krishnanunni – learned Senior Counsel, assisted by Smt.Meena A., appearing for the appellant and Sri.O.Ramachandran Nambiar – learned Senior Counsel, assisted by Sri.Cibi Thomas, appearing for the respondents.

5. Sri.T.Krishnanunni - learned Senior Counsel appearing for the appellant, submitted that the order passed by the executing court as well as the First Appellate Court are unsustainable inasmuch as the Supreme Court had left open the question of law to be considered by the executing court. The executing court ought to have considered that the application filed under Order XXI Rule 97 read with Rule 99 was not maintainable, since admittedly the claim petitioner was not in possession of the decree schedule property. It is further contended that even assuming for argument sake that the application is found to be maintainable, the same could not have been allowed under any circumstances especially since an earlier suit for the same relief was preferred by the claim petitioner as O.S.No.197/1992 and the same was not pressed and the suit was dismissed by judgment dated 15.01.1998. The executing co