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HIGH COURT OF JUDICATURE AT MADRAS
K. KALYANASUNDARAM, J.
B.M. Sivanarayanan Sah – Appellant
Versus
Breadway rep. by its Partner C. Asaithambi & Another – Respondent
C.R.P (NPD) No. 421 of 2015 & M.P. Nos. 1 & 2 of 2015
Decided On : 30-03-2015
Civil Procedure Code - Order 21 - Rules 98 - Constitution of India, 1950 - Article 227 - Specific performance of agreement of sale - Possession of suit property - Order of exported injunction - Petitioner instituted a suit against second respondent in before this Court for specific performance of agreement of sale and suit was decreed - Since judgment debtor did not execute sale deed Asst. Registrar of this Court executed sale deed in favor of petitioner – Thereupon petitioner filed application for delivery of vacant possession of suit property - Judgment debtor opposed application contending that there was no decree for delivery of possession – However Master allowed application by order directing judgment debtor to handover possession of ground and first floors to petitioner - Challenging same judgment debtor filed Appeal and same was dismissed by this Court - Application filed by petitioner for delivery of possession of ground and first floors of suit property was ordered - Since execution was resisted bailiff returned warrant unexecuted along with his report – Thereupon petitioner filed Application for removal of obstruction created by judgment debtor in ground and first floor of suit property and also to provide police protection for carrying out delivery of vacant possession of suit property – Held, Rules not applicable to transferee pendent Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for possession of immovable property by a person to whom judgment-debtor has transferred the property after institution of suit in which decree was passed or to dispossession of any such person - Counsel appearing for first respondent plaintiff has relied upon decisions of this Court and decision of Apex Court viz. wherein it was held that obstruction application is not maintainable under Order 21 Rule 102 if transfer took place after institution of suit and suit is decreed - Court in agreement with submissions of learned counsel for first respondent plaintiff that application is not maintainable - As per decisions of this Court and Apex Court obstructers cannot invoke Order 21 Rule 97 in said circumstances since transfer of property took place after institution of suit – Hence appeal deserves to be rejected - In present case has elaborately considered entire facts and law involved in this subject and observed that suit is not maintainable in law – Court respectfully agree with views taken by this Court - Court of opinion that suit is liable to be set struck off on ground of abuse of process of law and is not maintainable as per Rules 101 & 102 of Order 21 CPC - First respondent is also not entitled to maintain an application under Order 21 Rule 97 CPC - Therefore Court of considered opinion that decisions cited by learned counsel for 1st respondent have no bearing on facts of this case - Civil Revision Petition is allowed
1. This revision is filed to strike off the plaint in O.S.No.7412 of 2014 ending on the file of the III Asst. Judge, City Civil Court, Chennai.
2. Heard Mr.M.Venkateswaran, learned counsel for the petitioner and Mr.R.Abdul Mohideen, learned counsel for the first respondent and perused the records.
3. The undisputed facts are as follows -
(A) The petitioner Shri Sivanarayana Sah instituted a suit against the second respondent in C.S.No.860 of 2008 before this Court for specific performance of agreement of sale dated 23.09.2004 and the suit was decreed on 08.09.2010. Since the judgment debtor did not execute the sale deed, the Asst. Registrar (O.S.I) of this Court executed the sale deed in favour of the petitioner on 04.01.2013 in E.P.No.21 of 2012. Thereupon, the petitioner filed application No.4324 of 2013 in E.P.No.21 of 2012 for delivery of vacant possession of the suit property. The judgment debtor opposed the application contending that there was no decree for delivery of possession. However, the learned Master allowed the application by order dated 22.11.2013 directing the judgment debtor to handover possession of the ground and first floors to the petitioner. Challenging the same, the judgment debtor filed Appeal in A.No.5971 of 2013 and the same was dismissed by this Court.
(B) The Application filed by the petitioner for delivery of possession of ground and first floors of the suit property was ordered. Since the execution was resisted, the bailiff returned the warrant unexecuted alongwith his report dated 21.04.2014. Thereupon, the petitioner filed Application Nos.3929 and 3930 of 2014 for removal of obstruction created by the judgment debtor in the ground and first floor of the suit property and also to provide police protection for carrying out delivery of vacant possession of the suit property.
(C) One Mr. Khajamohideen filed Application No.3933 of 2014 contending that he has been the tenant in respect of the ground floor portion alongwith some other tenants and that he should not be evicted except undue process of law. Similarly, one Mr.Vivekanandan claiming to be the tenant in respect of the first floor portion and running his company in the name and style of M/s.Park Town Benefit Fund Limited filed Application No.4627 of 2014. Application Nos.3929 & 3930 of 2014 were allowed by the learned Master on 24.11.2014 directing issuance of warrant to the bailiff to break open the locks put up in the ground floor and removal of judgment debtor and the third party and also ordered for police protection for execution of the warrant. The Registry issued the warrant on 22.12.2014 in pursuance of order of the learned Master dated 24.11.2014.
(D) At that juncture, one Mr.Akram Khan filed a suit in O.S.No.185 of 2015 on the file of III Asst. Judge, City Civil Court, Chennai claiming to be a tenant of first floor portion as per the lease agreement dated 16.06.2010. One Krishnarajulu, claiming to be a tenant in respect of 600 sq.ft in the first floor as per the lease agreement dated 18.02.2013, filed a suit in O.S.No.186 of 2015. The first respondent herein filed a suit in O.S.No.7412 of 2014 against the petitioner and the 2nd respondent herein contending that he was inducted as a tenant in respect of the ground and first floor of the suit property, as per rental agreement dated 05.02.2010 and obtained an order of exparte injunction in I.A.No.19943 of 2014 on 23.12.2014. On 26.12.2014, the petitioner alongwith court bailiff went to the suit property to effect delivery of vacant possession. A staff of the judgment debtor company obstructed delivery of possession armed with an order of exparte injunction. Therefore, on 27.12.2014, the petitioner lodged a police complaint, since no action was taken on the complaint, he preferred Crl.OP Nos.755 & 936 of 2015 to direct the Inspector of police (Law & Order), F-1, Police Station, Chindatripet, Chennai to register a case and to provide police protection until delivery of possession
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