Back
2008 Supreme(Mad) 2530
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. TAMILVANAN
Kayalvizhi
Versus
S. Parthasarathy & Another
C.R.P (NPD) No.3225 of 2007 & M.P.No.1 of 2007 and M.P.No.1 of 2008
Decided on: 21-07-2008
For the Petitioner:N. Manokaran, Advocate. For the Respondents:R. Sundar Rajan, R1, D. Seetharaman, Advocates.
Headnote:A. CIVIL PROCEDURE CODE, 1908 - ORDER 21, RULE 35, 37, 101 and 106 - Decree holder seeking removal of obstruction by revision petitioner (R2 in EP and wife of R1) Petition allowed exparte - CRP filed by R2 - Contention of DH that Order 21 Rule 35 is applicable since Revision Petitioner is wife of JD, who had no independent right but claiming right only through husband and that revision petitioner is a person bound by decree (Para 17) - Contention accepted - HELD, it can normally be inferred that revision petitioner living with the husband under one roof was aware of sale agreement - Failure of parties to invoke Order 21, Rule 106 to set aside order in EP, pointed out - CRP dismissed (Para 13 and 14) - See also Words & Phrases ’any person’.
B. CIVIL PROCEDURE CODE, 1908 - ORDER 21 RULE 35 AND ORDER 21 RULE 97 AND 101 - Invoking of Sections when - HELD under Order 21, Rule 35(1) executing court delivers actual possession of property to DH, if necessary, by any person bound by decree refusing to vacate it - As per Order 21 Rule 97 it is applicable to any person either bound by decree claiming title through JD or claiming independent right of his own including a tenant not party to a suit or even a stranger - Same refers to Order 21 Rule 101 "as amended by 1976 Act under which all questions relating to right, title or interest in property arising between parties under Rule 97 or 99, which shall be determined by executing court and not by a separate suit - Therefore, as per amendment, one need not go for a fresh suit, since all matters pertaining to that property including obstruction by stranger are adjudicated in execution proceedings - "Any person" meaning of (Para 20 and 21) - See also Words & Phrases ’any person’.
C. WORDS AND PHRASES - CPC Order 21, Rule 97 Expression ’any person’ in Rule 97(1), is used cleverly to widening scope of power, so as to enable executing court to adjudicate claim - Expression includes all persons resisting delivery of possession, claiming right in property even those not bound by decree including tenants or other persons claiming right on their own, including a stanger - 1988 -4- see 543, relied on (Para 21) - See also CPC order 21 Rule 35 etc.
Result: CRP Dismissed
This Civil Revision Petition has been preferred against the Fair and Decreetal Order, dated 20.01.2007 made in E.A.No.322 of 2006 in E.P.No.67 of 2004 in O.S.No.664 of 1999 on the file of the Sub-Court, Tiruppur.
2. The first respondent/decree-holder filed the Execution Petition, seeking the relief under Order 21 Rule 35 of the Code of Civil Procedure and the Execution Application under Order 21 Rule 97 of the Code of Civil Procedure for removal of obstruction made by the revision petitioner, the second respondent therein and to put the first respondent in the possession of the property. It is an admitted fact that no counter was filed by the petitioner herein and the other respondent/judgment-debtor and there was no representation for the said respondents before the Executing Court. Hence, the petitioner herein and the other respondent were set exparte and the petition filed by the first respondent/decree-holder herein was allowed by order, dated 20.01.2007 passed by the court below. Aggrieved by which, this revision has been preferred by the petitioner herein.
3. Mr.N.Manokaran, learned counsel appearing for the revision petitioner submitted that the petition filed under Order 21 Rule 97 CPC cannot be disposed summarily by the Executing Court. According to him, being an appealable decree, the Court below could have passed the interim order, like a decree in a suit, as per Order 21 Rule 101 CPC. In support of his contention, he relied on the decisions 1) Shreenath vs. Rajesh reported in 1998 (4) SCC 543 and 2) Tanzeem-E-Sufia vs. Bibi Haliman, reported in 2002 (7) SCC 50 and placed his argument to set aside the impugned order and direct the court below to provide reasonable opportunity to the revision petitioner and to dispose the same on merits.
4. Mr.R.Sundar Rajan, learned counsel appearing for the first respondent/decree-holder submitted that it is a clear abuse of process of the Court, since the revision petitioner is the wife of the judgment-debtor, living with her husband under one roof, as she is bound by the decree, and Order 21 Rule 35 CPC is applicable to the facts and circumstances of this case. According to the learned counsel for the first respondent/decree holder, the revision petitioner herein is admittedly the wife of the second respondent/judgment-debtor and not a third party. She has no independent right in the property, however, she filed this Civil Revision Petition, without seeking her remedy under Order 21 Rule 106 CPC before the Executing Court, which is a clear abuse of process of Court. In support of his contention, the learned counsel appearing for the first respondent cited the following decisions and sought for dismissal of the revision petition :
1. Shri Devi vs. Kashiram, AIR 1984 Rajasthan 94
2. Yashodanand vs. Hindustan Commercial Bank, Kanpur, AIR 1986 Allahabad 215
5. It is not in dispute that the suit in O.S.No.664 of 1999 had been filed for specific performance by the first respondent/decree holder against the second respondent herein. After duly contested, the suit was decreed in favour of the first respondent on 211. 2001. Pursuant to the decree, the first respondent filed Execution Petition in E.P.No.12 of 2003 and also obtained sale deed executed, as per the order of the Executing Court. Subsequently, as the second respondent/judgment-debtor did not hand over the possession of the suit property, the first respondent/decree-holder filed E.P.No.67 of 2004, wherein delivery was ordered, directing the second respondent to hand over the possession of the property. However, the revision petitioner filed a petition as an obstructor/third party. Hence, the Execution Application in E.A.No.322 of 2006 was filed by the first respondent/decree-holder against the judgment-debtor and his wife, the revision petitioner herein. As there was no representation for the judgment-debtor and his wife, the respondents therein, the said application was allowed by the Court below. Aggrieved by
