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MADRAS HIGH COURT
R.S. Ramanathan, J.
Thangeswari and 2 Others —Petitioners
versus
Thirumalvalavan and 8 Others —Respondent
C.M.S.A. No. 11 of 2010 and M.P. Nos. 1 and 2 of 2010
Decided on 18.2.2011
(ii) Civil Procedure Code, 1908—Order 21 Rules 97 and 98, order 43 Rule 1—Issue when it is axiomatic in law that an order allowing application under order 21 Rule 97 would tantamount to a decree as per Rule 103, and is appealable, whether Lower Appellate Court is correct in law in holding that appeal filed is not maintainable—Held—Against the order passed in application filed under O. 21 Rule 97, appeal alone lies—Order of Lower Appellate Court is erroneous. (Paras 19 and 20)
(iii) Civil procedure Code, 1908—Order 21 Rules 97 and 98, order 43 Rule 1—Whether it is open to the Lower Appellate Court to consider the appeal on merit, after holding that appeal itself is not maintainable—Held—It is settled preposition of law that once the matter is held to be not maintainable, the court cannot adjudicate on the merit of the case—Against the order passed in application filed under Order 21 Rule 97, appeal alone lies—Order of appellate court about maintainability of appeal is erroneous—However appellant cannot take advantage of that finding inasmuch as the Lower Appellate Court has dealt with the matter and dismissed the appeal on merit. (Paras 19 and 20)
(iv) Limitation Act, 1963—Article 129—When the petition to remove the obstruction has to be field within a period of 30 days from the date of obstruction, whether the petition to remove the obstruction filed on 22.03.2004 in respect of the obstruction made on 18.02.2004 is maintainable in law—Held—It is barred by limitation. (Para 21)
Result: Miscellaneous petition dismissed.
R.S. Ramanathan, J.—The Appellants herein are the obstructors, who filed the suit in O.S. No. 506 of 1992.
2. The facts which are necessary for the disposal of this Second Appeal are as follows:
(i) The Respondents 1 to 5 herein filed the Suit in O.S. No.520 of 1981, against the Respondents 6 to 9, for Specific Performance of an Agreement of Sale, executed by one Kathirvel Padayachi, whose legal representatives are the Respondents 6 to 9 in this Second Appeal. The Suit was decreed on 10.2.1982. Thereafter, an Application in I.A. No.6602 of 1993, was filed by the Respondents 6 to 9 to set aside the decree and that was ultimately dismissed on 22.01.2001.
(ii) Thereafter, a Suit in O.S. No. 506 of 1992 was filed by the Appellants and another seeking the relief of declaration that they are the owners of the suit property and for injunction, restraining the Defendants thereunder. The Respondents 1 to 7, herein were the Defendants in O.S. No. 506 of 1992 and in that Suit, the Appellants filed I.A. No. 428 of 1992, seeking for the relief of injunction and that was granted on 12.3.1992, by which the Respondents were restrained from taking possession of the suit properties. That injunction order was extended periodically till 8.2.1993, the date on which the Suit was dismissed and the injunction Application was also dismissed.
(iii) Thereafter, the Appellants filed Application in I.A. No.107 of 1993, to set aside the dismissal order passed in O.S. No.506 of 1992 and that was allowed and thereafter, it was dismissed and after filing various applications to restore the same, the Suit was dismissed finally on 12.7.2002. Meanwhile, the Respondents 1 to 5, filed Execution Petition in E.P. No. 50 of 1992, to execute the Sale Deed, in pursuant to the decree passed in O.S. No. 520 of 1981 and the sale was also executed by the Executing Court on 2.3.1992. Thereafter, E.P. No.47 of 2003, was filed for delivery of the property and at that time, the Appellants caused obstructions stating that during the pendency of the Suit in O.S. No.520 of 1981, they purchased the Suit property under two Sale Deeds dated 26.3.1987 and 13.12.1990 and they are in enjoyment of the same.
(iv) Therefore, the Respondents I to 5, filed E.A. No.58 of 2004, to remove the obstructions caused by the Appellants and that was ordered. Against the said order, the Appellants filed an Appeal in C.M.A. No.1 of 2005, on the file of the Subordinate Court, Ariyalur, and that was also dismissed and as against the same, the present Civil Miscellaneous second appeal is filed.
3. The following substantial questions of law were framed at the time of admission of this Civil Miscellaneous Appeal:
“(a) When it is axiomatic in law that an order allowing application under Order 21, Rule 97 of C.P.C. would tantamount to a decree as per Rule 103, and is appealable, whether the Lower Appellate Court is correct in law in holding that the Appeal filed by the Appellants is not maintainable ?
(b) Whether it is open to the Lower Appellate Court to consider the Appeal filed by the Appellants on merits, after holding that the Appeal itself is not maintainable, when it is a well settled that once the matter is held to be not maintainable, the Court cannot adjudicate on the merits of the case?
(c) When the decree dated 10.2.1982 has to be executed within a period of 12 years as per Article 136 of the Limitation Act, 1963, whether the Execution Petition filed in the year 2003, is sustainable in law?
(d) When there was no order preventing the Respondents 1 to 5/decree holders from proceeding with the execution, whether the Courts below are correct in law in holding that the Execution Petition filed by the Respondents 1 to 5, after the period of limitation is sustainable ?
(e) When the Sale Deed was executed on 2.3.1992 and as per Article 137, the Petition for possession has to be filed within three years therefrom, whether the Execution Petition filed after eleven years therefrom is sustain
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