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2009 Supreme(Mad) 3675
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
Aruna Jagadeesan, J.
G.G. Kannan
Vs.
Saleem
C.R.P.(PD)(MD) No. 1288 of 2009 and M.P.(MD) No. 3 of 2009
Decided On: 11.09.2009
For Appellant/Petitioner/Plaintiff: R. Rajaraman, Adv.
The executing court must adjudicate upon objections of the appellant on merits under Rule 97(2) r/w Rules 101 and 98, and all relevant issues arising in the matter on an application under Order 21, Rule 97 or Rule 99 shall be determined by the executing court and not by a separate suit.
Headnote:
Order - Eviction - Interpretation of Order 21, Rule 97 of Civil Procedure Code
Fact of the Case:
The petitioner, a tenant, filed a petition under Order 21, Rule 97 of the Civil Procedure Code, claiming obstruction to eviction. The trial court returned the petition twice, stating it was not maintainable.
Finding of the Court:
The court found that the trial court failed to exercise jurisdiction vested in it by law by refusing to adjudicate upon the obstruction and the petitioner's claim. The impugned order was set aside, and the executing court was directed to adjudicate upon the petitioner's claim within a month.
Issues: The issues revolved around the petitioner's claim of obstruction to eviction and the trial court's refusal to entertain the petition under Order 21, Rule 97 of the Civil Procedure Code.
Ratio Decidendi: The executing court must adjudicate upon objections of the appellant on merits under Rule 97(2) r/w Rules 101 and 98, and all relevant issues arising in the matter on an application under Order 21, Rule 97 or Rule 99 shall be determined by the executing court and not by a separate suit.
Final Decision: The Civil Revision Petition was allowed, and the impugned order was set aside. The executing court was directed to adjudicate upon the petitioner's claim within a month.
Aruna Jagadeesan, J.
1. This Civil Revision Petition is preferred against the order dated 18.08.2009 passed in unnumbered E.A. of 2009 in E.P. No. 249 of 2002 in R.C.O.P. No. 73 of 1985 on the file of Principal District Munsif Court, Kumbakonam.
2. An ex-parte order of eviction has been passed against one Theskhnamoorthy, who is said to have let out the property to the petitioner executing a rent deed in his favour by getting a sum of Rs. 15,000/- (Rupees fifteen thousand only) as consideration on 18.08.1998. According to the petitioner, he was paying the rent of Rs. 750/- (Rupees seven hundred and fifty only) per month to the said Theskhnamoorthy till January 2008. Thereafter, it is alleged that Theskhnamoorthy colluded with the decree holder and refused to receive the rent. Subsequently an exparte eviction had come to have been passed.
3. Admittedly, the petitioner is not a party to the proceedings in R.C.O.P. No. 73/85. It is submitted by the petitioner that he is running a hotel and tea stall in the name and style of "HOTEL SRIRAM CABE". On an apprehension that he may be evicted forcibly, it is said that he has filed a suit in O.S. No. 129 of 2008 on the file of the learned Principal District Munsif, Kumbakonam, for permanent injunction restraining the said Theskhnamoorthy and the decree holders or their agent men or anybody claiming through them from interfering and evicting the plaintiff forcibly except under due process of law and the said suit is pending. It appears that the decree holder has filed the execution petition and delivery has been ordered.
4. The petitioner has filed an application under Order 21, Rule 97 of the code of Civil Procedure, as an obstructor, but the trial Court, without even numbering the petition, has returned it on the ground that the petition is not maintainable. Thereafter, he has represented the said petition sustaining the maintainability of the petition citing various decisions. Again, the Court has returned the petition stating that the previous returns has not been complied with. As against the said order returning the petition filed under Order 21, Rule 97 of Civil Procedure Code, this Civil Revision Petition has been filed.
5. Order 21, Rule 97 of Civil Procedure Code, reads as follows:
97.Resistance or obstruction to possession of immovable property:
(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Anr. reported in (1997)3 SCC 694, the Honourable Supreme Court has held that the executing Court must first adjudicate upon objections of the appellant on merits under Rule 97(2) r/w Rules 101 and 98 instead of insisting upon first handling over possession and then moving of application by the appellant under Rule 99. In another decision reported in AIR 2002 SCC 251 in N.S.S. Narayana Sarma and Ors. v. Goldstone Exports(p) Limited and Ors. the Honourable Supreme Court has held that all relevant issues arising in the matter on an application under Order 21, Rule 97 or Rule 99 shall be determined by Executing Court and not by a separate suit.
6. When the delivery of possession of property has been obstructed and a dispute arises as to whether the person causing obstruction is a sub-tenant of the judgment debtor or not, the Execution Court should determine the question by doing proper investigation under Order 21, Rule 97 of Civil Procedure Code.
7. It is the case of the petitioner that he is in possession from 1998 onwards running a hotel and tea stall in the name and style of "HOTEL SRIRAM CABE" and he is not aware of the de
