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2018 Supreme(Mad) 2726
IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M. VELUMANI, J.
R. Rajendran - Appellant
Vs.
S. Vijaya Babu - Respondent
C.M.A. No. 624 of 2018 & C.M.P. No. 5617 of 2018
Decided On : 12-04-2018
Advocate Appeared:
For the Appellant : Mr. N. Sathyamoorthi
Headnote:
Civil Procedure Code, 1908 - Section 151 - Claiming Right in Property - Occupation of Suit Property - Appellant and respondent are decree holder and judgment debtor respectively on file of District Munsif Court Chengalpattu and petitioner and respondent respectively on file of District Munsif Court Chengalpattu - Appellant filed said E-P for executing decree obtained by him to eject one defendant in said suit - According to respondent he is in occupation of suit property as a tenant and said defendant is not in occupation of suit property - Court Amin also made an endorsement to that effect in E-P proceedings - Appellant is intending to sell suit property to third party and he is trying to evict respondent by illegal means - Therefore respondent filed for permanent injunction not to evict respondent except by due process of law said suit is pending - Appellant is guilty of suppression of fact and respondent prayed as follows in said E-A - Hence it is just and necessary that this Honble Court may be pleased to Admit accompanying Petition urgently - Adjudicate Obstructers petition filed herewith at first instance before passing any orders in present Execution Petition - Stay all further proceedings in present E-P until deciding present Objectors Petition and to Pass such other suitable order or orders - Held, Thus by use of words any person it 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 stranger - All disputes between decree holder and any such person is to be adjudicated by executing Court - A party is not thrown out to relegate itself to long drawn out arduous procedure of a fresh suit - This is to salvage possible hardship both to decree holder and other person claiming title on their own right to get it adjudicated in very execution proceedings - We find that deals with cases of delivery of possession of an immovable property to decree holder by delivery of actual physical possession and by removing any person in possession who is bound by a decree while under Order only symbolic possession is given where tenant is in actual possession - Order as aforesaid conceives of cases where delivery of possession to decree holder or purchaser is resisted by any person - Any person as aforesaid is wide enough to include even a person not bound by a decree or claiming right in property on his own including that of a tenant including a stranger - Petition is closed.
This Appeal is filed against the judgment and decree dated 19.07.2017 made in A.S. No. 8 of 2017 on the file of the Additional Subordinate Court, Chengalpattu, reversing the order and decree dated 03.01.2017 made in E.A. No. 129 of 2016 in E.P. No. 11 of 2015 in O.S. No. 239 of 2012 on the file of the District Munsif Court, Chengalpattu.
2. The appellant and respondent are the decree holder and judgment debtor respectively in O.S. No. 239 of 2012 on the file of the District Munsif Court, Chengalpattu and petitioner and respondent respectively in E.P. No. 11 of 2015 on the file of the District Munsif Court, Chengalpattu. The appellant filed the said E.P for executing the decree obtained by him to eject one A. Kumar, the defendant in the said suit. The respondent herein filed E.A. No. 129 of 2016 in E.P. No. 11 of 2015 under Order XXI Rule 97(2) read with Section 151 of C.P.C.
3. According to the respondent, he is in occupation of the suit property as a tenant and the said A. Kumar, the defendant in the O.S. No. 239 of 2012 is not in occupation of the suit property. The Court Amin also made an endorsement to that effect in the E.P proceedings. The appellant is intending to sell the suit property to the third party and he is trying to evict the respondent by illegal means. Therefore, the respondent filed O.S. No. 161 of 2016 for permanent injunction, not to evict the respondent, except by due process of law. The said suit is pending. The appellant is guilty of suppression of fact and the respondent prayed as follows in the said E.A:
“12. Hence it is just and necessary that this Hon'ble Court may be pleased to:
a. Admit the accompanying Petition urgently,
b. Adjudicate the Obstructer's petition filed herewith at the first instance before passing any orders in the present Execution Petition,
c. Stay all further proceedings in the present E.P until deciding the present Objector's Petition and to
d. Pass such other suitable order or orders.”
4. The appellant filed counter and denied all the allegations made by the respondent and contended that the application filed by the respondent under Order XXI Rule 97 of C.P.C is not maintainable. A third party has no right to file an application under Order XXI Rule 97 of C.P.C. Only the decree holder/auction purchaser can file an application under the said provision and prayed for dismissal of the said application.
5. The learned Judge of Executing Court considered all the averments in the affidavit, counter affidavit, materials available on record and the judgments relied on by the counsel for the parties, dismissed E.A.No.129 of 2016 filed by the respondent, holding that the application filed by the respondent is not maintainable.
6. Against the said order dated 03.01.2017 made in E.A. No. 129 of 2016, the respondent herein filed Appeal suit A.S. No. 8 of 2017 on the file of the Additional Subordinate Court, Chengalpattu. The learned First Appellate Judge considering all the materials on record, order of the learned Judge and judgments relied on by the counsel for the parties, allowed the appeal, A.S. No. 8 of 2017 and remanded the same to the Executing Court for fresh disposal according to law, giving liberty to both the parties to let in oral and documentary evidence.
7. Against the said judgment and decree dated 19.07.2017 made in A.S. No. 8 of 2017 on the file of the Additional Subordinate Court, Chengalpattu, the appellant has come out with the present Civil Miscellaneous Appeal.
8. The contention of the learned counsel for the appellant is that E.A.No.129 of 2016 filed by the respondent under Order XXI Rule 97 is not maintainable and the learned First Appellate Judge ought to have dismissed the said application. The learned First Appellate Judge ought to have held that only remedy available to the respondent is to move the application under Order XXI Rule 99 of C.P.C. The learned First Appellate Judge failed to take note of the fact that when there is an obstruction in execution, only the
