ORDER :

PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 05.02.2009 passed by the XI Small Causes Court at Madras in M.P.No.115 of 2008 in M.P.No.376 of 2007 in E.P.No.321 of 1996 in R.O.C.No.1698 of 1990.

Challenging the order of dismissal passed by the trial court in M.P.No.115 of 2008 in M.P.No.376 of 2007 in E.P.No.321 of 1996 in R.O.C.No.1698 of 1990, this revision petition has been filed.

2. The brief facts leading to file this revision petition is as follows. One Krishnaveni, the 2nd respondent herein had filed a petition in RCOP No.1698 of 1990 against one Palani, the first revision petitioner herein, who is the husband of the 2nd revision petitioner, to vacate the premises. The said RCOP No.1698 of 1990 was allowed on 31.03.1992. In execution of the above order, possession of the premises was taken by the said Krishnaveni. During the said proceedings, it appears that the Krishnaveni had entered into a sale transaction with one Kalaiselvi, the 2nd revision petitioner herein. Based on such transaction, the property itself was allotted to Kalaiselvi by the Slum Clearance Board. Thereafter, Krishnaveni has also challenged such transfer of property by filing a suit in O.S.No.10351 of 1990. Similarly, Kalaiselvi has also filed a suit in O.S.No.1293 of 1995 for declaration that the decree obtained in RCOP PNo.1698 of 1990 as null and void, since she herself has become owner of the property. Both the suits were tried together. Ultimately, the suit filed by Kalaiselvi in O.S.No.1293 of 1995 was decreed as prayed for, setting aside the judgment passed in RCOP No.1698 of 1990. However, the suit filed by the Krishnaveni for vacant possession and injunction was dismissed. Hence, the above judgments reached finality, since no appeals were filed.

3. At this juncture, the said Kalaiselvi had filed an application in M.P.No.623 of 1996 in E.P.No.321 of 1996 for restitution of the possession of the property, since the possession had been delivered while executing the order passed in RCOP No.1698 of 1990 and the same was allowed on 18.07.2007. Thereafter, when the petition was pending for delivery of possession, one Nithyanandam, the son of the second respondent herein, namely Krishnaveni had filed an application in M.P.No.376 of 2007 in M.P.No.623 of 1996 in E.P.No.321 of 1996 under Order 21 Rule 97 of the Code of Civil Procedure for obstruction. The revision petitioners herein filed an application in M.P.No.115 of 2008 in M.P.No.376 of 2007 in E.P.No.321 of 1996 to reject the above application. The trial court dismissed the said application, against which the revision petitioners came up with this present revision.

4. The learned counsel appearing for the revision petitioners would submit that the application filed under Order 21 Rule 97 of the Code of Civil Procedure by Nithyanandam, obstructer is not maintainable in law, since only the decree holder can file an application under the said provision, during execution proceedings. Whereas, in the case on hand, the revision petitioners have not sought any relief to execute the decree and only sought for restitution of the possession of the property under Section 144 of the Code of Civil Procedure. Hence, the order of dismissal by the trial court is not maintainable in law. In support of his argument, the learned counsel appearing for the revision petitioners relied on the judgments in (i) Donna Rossi Kitchen Line V. D. Harikrishnan reported in 2014(2) CTC 690 and (ii) M. Gopinathan Pillai V. K. Radhakrishnan and 13 others reported in 2014 SCC Online Madras 8828.

5. The learned counsel appearing for the first respondent would submit that the first respondent is in possession of the property and he can make obstruction, since earlier transaction and decree are the result of collusion and the same cannot be put against him and hence, the revision petition is not maintainable.

6. I have perused the materials on record and the orders passed