An obstructor cannot file an application under Rule 97 of Order XXI C.P.C., but can defend their rights when the decree holder invokes this rule.

JUDGMENT

It is against the dismissal of an application under Rule 97 of Order XXI C.P.C., the obstructor came up in appeal. The question whether an obstructor can make use of Rule 97 of Order XXI C.P.C. was considered by this Court inThomas Danniel @ Bose v. Rajan J. ( 2021 (4) KLT 146 ) after referring (I)Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal [ (1997) 3 SCC 694 : 1997 AIR SCW 685](ii) Noorduddin v. K.L.Anand (LAWS (SC 1994 1018 :1994 AIR SCW 5093)(iii) Bhanwar Lal v. Satyanarain [ (1995) 1 SCC 6 : 1994 AIR SCW 4549] (iv) Silverline Forum Pvt. Ltd. v. Rajiv Trust and another (AIR 1998 SC 1754)and laid down the legal position as follows:

“11.From the language employed by the Apex Court that “a third party to the decree who offers resistance would fall within the ambit of R.101, if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree” would amply make the legal position crystal clear that Rule 97 would come into play only on offering obstruction or resistance to the execution of a decree and Rule 101 would come into play when an adjudication is warranted as a consequence of that obstruction or resistance. This would make the legal position clear that an adjudication under Rule 101 would come into play only on invoking the mode of execution under Rule 97 for removal of obstruction or resistance by the decree holder or the auction purchaser. Rule 97 strictly is a mode of execution for removal of obstruction or resistance offered by third persons, when complained of by the decree holder or the auction purchaser, as the case may be. It is by virtue of Rule 101, a deemed jurisdiction is vested with the execution Court to decide and determine the questions of right, title and interest of an obstructor or resistor over the property sought to be delivered by exhausting the mode of execution under Rule 97 of Order 21 C.P.C. The deemed jurisdiction vested under Rule 101 can be exercised only in relation to an application under Rule 97 or 99 of Order 21 C.P.C. and not otherwise. It really stands attached with what is summed up under the caption “resistance to delivery of possession to decree holder or purchaser”. Rule 97 is an instrumentality and mode of execution in the hands of a decree holder to execute a decree by removing the obstruction and resistance. Nothing mentioned in Rule 97 in maintaining a claim petition under that rule by a third person, but simply says that when execution of a decree is resisted or obstructed by any person in obtaining possession, the decree holder or the purchaser may make an application to the executing court complaining of such resistance or obstruction. In fact, what is mandated under Rule 97 is a complaint in the form of an application for removal of obstruction or resistance. It is by virtue of sub-rule(2) to Rule 97, the executing Court is empowered to adjudicate the application so filed under sub- rule(1). The right of defence of an obstructor or resistor would arise only when there is an application under Rule 97 by the decree holder or the purchaser in court sale. There is nothing in Rule 101 so as to enable a third party to file an independent application or claim petition bypassing Rule 97 or Rule 99 of Order 21 C.P.C. Both the Rules 97 and 99 are, hence, separate mode of execution available to a decree holder with a provision to entertain and adjudicate the objection raised by any obstructor or resistor as to his right, title or interest over the said property by virtue of deemed jurisdiction conferred under Rule 101 of Order 21 C.P.C. The person who obstructs the execution has the right to agitate his right, title or interest at the adjudicatory stage of Rule 101 by way of defence. But that does not mean that he can maintain an application under Rule 97 of Order 21 C.P.C.”

Necessarily, no further discussion is necessary to hold that the claim petition preferred under Rule 97 of Order XXI C.P.C. by the obstructor is