Limitation for filing application for removal of obstruction.

SHIVRAJ V. PATIL, J.

This appeal is by a person, who claims to be in possession of the property in question which is the subject-matter of the decree passed by this Court in C.S. No. 49 of 1975 which is in execution now, in E.P. No. 71 of 1993, against the order dated 23-12-1996 made by the learned single Judge in Application No. 4325 of 1996 in the said Execution Petition.

2. Briefly stated, the facts and events which are considered necessary and relevant for the disposal of this appeal, are the following :-

C.S. No. 49 of 1975 was filed by the decree-holder for setting aside the sale deed dated 20-5-1965 in respect of the suit schedule property and for recovery of possession. Though the said suit was dismissed by the learned single Judge on original side, it was reversed by the Division Bench in O.S.A. No. 93 of 1979 and the sale deed dated 20-5-1965 executed by the first defendant in favour of the second defendant was held void, and further the defendants were directed to deliver possession of the property to the plaintiff. S.L.P. (Civil) No. 7849 of 1988 filed against the Judgment and decree passed by the Division Bench of this Court in the aforementioned appeal was also dismissed on 11-12-1992.

3. The decree-holder filed E.P. in 1993. On 5-4-1994 orders were passed for issuing warrant for delivery of possession. When the said warrant was sought to be executed, the appellant herein obstructed the delivery on 27-4-1994. On the same day the defendant in the suit filed application to set aside the warrant for delivery, and stay was granted in the Execution petition staying further proceedings. The stay order was vacated on 9-12-1994 on the application of the decree-holder. On 3-1-1995 the decree-holder applied for amending the door No. of the property and also sought police help which prayers were granted by the Master by order dated 20-7-1995.

4. Within a fortnight thereafter, the appellant filed Application Nos. 3896/95 and 3897/95 obstructing the execution of warrant and seeking stay of the order directing issue of warrant. An ex parte stay was granted by the Master on 3-8-1995. On notice the decree-holder, besides filing counter-affidavit to the said applications, filed an application No. 4813/95 for removal of the obstruction. The Master by his order dated 18-11-1996 after holding enquiry on applications 3896, 3897 and 4813/95, directed to re-issue the warrant.

5. The appellant filed Application No. 4925/96 to set aside the order dated 18-11-1996 passed by the Master in Application No. 4813/95 in E.P. 71/93 in C.S. 49/75, and also to stay further proceedings in the said execution petition. The learned single Judge, after hearing the parties and on detailed examination of the contentions raised, passed the order under appeal, dismissing the application No. 4325/96 filed by the appellant. Hence this appeal filed by the appellant as already stated above.

6. Shri G. Subramaniam, learned senior counsel for the appellant urged that -

(i) the application 4813/95 was clearly barred by time as it was not made within a period of 30 days from the date of actual obstruction i.e., 27-4-1994 having regard to Article 129 of the Limitation Act;

(ii) the possession of the appellant over the suit property was not under the Judgment debtor,or the appellant did not claim his possession over the property under the Judgement debtor, or that he was resisting delivery of possession at the instance of the judgment debtor; he refers to his possession over the property prior to 1970 i.e., prior to filing of the suit itself; hence the order made for removal of obstruction was not correct and it was invalid;

(iii) in view of the amended provisions of Order 21, Rules 91 to 98, it is open to the decree-holder to file a separate suit. Under the circumstances the learned single Judge was not right in dismissing application No. 4325/96 by the order under appeal.

In support of his submissions, the learned senior counsel has placed reliance on the followi