Maintainability of the revision petition against the order on the petition filed by removed defendant.

The revision is filed by the decree-holder in O.S. No.324 of 1982, on the file of the District Munsif’s Court, Tirukoilur.

2. The, suit filed by the decree-holder was one for declaration of title and other reliefs. In the suit, there are three defendants. For reasons better known to the plaintiff, during trial, one of the defendants was removed from the party array. Later, the suit was decreed as prayed for. When execution was proceeded, defendant who was removed from the party array, filed the present application under Sec.47, of the Code of Civil Procedure, alleging that he is entitled to one half of the property for which decree has been granted in favour of the plaintiff. He said that he is entitled to the northern 47 cents on the basis of partition deed entered into before institution of the suit, and that since he is not a party to the proceedings, the decree is not binding on him.

3. The maintainability of the application was challenged by the decree-holder before the Executing Court.

4. On merits also, he contended that the document is invalid and he is entitled to recovery on the basis of the decree.

5. By the impugned order, court below accepted the contention of the so-called obstructor and said that the decree is not binding on him and that he is not liable to be dispossessed in so far as the northern 47 cents is concerned, which is the subject-matter of the suit. It is against the said order, the present revision Petition is filed.

6. The main contention that is raised by learned counsel for the petitioner is that the petition filed by a stranger is not maintainable and that the same is anticipatory in nature. According to him, where an execution is proceeded in accordance with a decree, a stranger cannot file an application before the Executing Court requesting that the court should make an adjudication against the interest of the decree-holder. At the first blush, even though the said argument seems to be attractive, I do not find any ground to accept the same in view of the decision reported in Babulal v. Raj Kumar and others, J.T. (1996)2 S.C. 716. In that case, their Lordships said that such an application even if filed, the Executing Court has to treat it as an obstruction, and an adjudication will have to be made. Their Lordships said that dispossession is not a’ condition precedent for filing such an application. In that case, their Lordships also followed an earlier decision of the Supreme Court reported in BhanwarLalv. Satyanarain and another. J.T. (1994)6 S.C. 626. In Bhanwar Lal’s case, their Lordships, after quoting Order 21, said in paragraph 4, thus:

"The procedure has been provided in Rules 98 to 103. We are not, at present, concerned with the question relating to the procedure to be followed and question to be determined under O.21 Rules 98 to 102. A reading of O.21, Rule 97, C.P.C. clearly envisages that "any person" even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or set up his own right title or interest de hors the judgment-debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree-holder gets right under Rule 97 to make an application against third party to have his obstruction and an enquiry thereon could be done. Since each occasion of obstruction orresistance furnishes cause of action to the decree-holder to make an application for removal of the obstruction or resistance by such person. “

7. In the later decision Babulal v. Raj Kumar and others, J.T (1996)2 S.C. 716, their Lordships said that there is no condition imposed under Rule 97, C.P.C., that the claim must be dispossession and only at that time, he can file the application. Their Lordships said, to have an adjudication, the party can be in possession, and even bef