IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.12.2025

CORAM

THE HONOURABLE MR JUSTICE P.B. BALAJI

CRP.No.5310 of 2025

and CMP. No.26746 of 2025

N.K.Kaliyaperumal ... Petitioner

Vs.

R.Jayakumar

... Respondent

PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decretal order in E.A. No.14 of 2025 in E.A. No.10 of 2025 in E.P. No.61 of 2021 in O.S. No.24 of 2011 dated 13.08.2025 on the file of the learned Additional District Judge (Fast

Track Court), Villupuram.

For Petitioner : Mr.N.Suresh

For Respondent : Mr.D.Vasanth

ORDER

The third party obstructor against whom an Application under Order

21 Rule 97 CPC has been filed by the decree holder is the revision petitioner. Aggrieved by the order dismissing his Application in E.A. No.14 of 2025 to issue summons to four witnesses which came to be dismissed by the Executing Court and challenging the said order, the present Civil Revision

Petition has been filed.

2. I have heard Mr.N.Suresh, learned counsel for the revision petitioner and Mr.D.Vasanth, learned counsel for the respondent.

3. Mr.N.Suresh, learned counsel for the petitioner would submit that the revision petitioner has admittedly been in peaceful possession of the decretal property and that is the reason why an application has been taken out by the decree holder under Order 21 Rule 97 CPC. Mr.Suresh, learned counsel would further contend that the petitioner claims under a prior agreement of sale dated 21.07.2003, in and by which, he was placed in physical possession of the suit property. However, behind his back, the respondent has proceeded to file a suit for specific performance of a subsequent agreement of sale dated 29.05.2009 and on the strength of the decree in the suit in O.S. No.24 of 2011 filed by the respondent, the petitioner is now attempted to be dispossessed.

4. Mr.N.Suresh, learned counsel would contend that in order to establish his independent claim to remain in possession of the decretal property, the petitioner intended to establish the genuineness of the agreement of sale dated 21.07.2003 and it is only in such circumstances that the Application was filed seeking to issue summons under Order 16 Rule 1 CPC. Mr.Suresh, learned counsel would fairly contend that one of the four witnesses who were sought to be summoned was none else than the decree holder himself and conceded to the settled legal position that the adversary party cannot be compelled to give evidence against his own case. Mr.Suresh, would pray that the revision may be allowed insofar as the remaining three witnesses are concerned.

5. Per contra, Mr.D.Vasanth, learned counsel for the respondent/decree holder would submit that the petitioner has no independent right or title to the decretal property and admittedly, he claims only under an agreement of sale. Pointing out to the fact that the said agreement of sale is of the year 2003, no effective steps have been taken to enforce the said agreement and only in order to protract the proceedings, the petitioner has filed the present application, he seeks for dismissal of the revision.

6. The learned counsel would also rely on the decision of this Court in Munusamy and others Vs. Vengadachalam and others, reported in 2011 (2) MWN (Civil) 150, where this Court held that in an Application under Order 21 Rule 97 CPC, the Executing Court need not go into the title of the decree holder, even if it is questioned by the obstructor and the enquiry can be limited only to the right of the obstructor and nothing more. The learned counsel would further state that Order 16 Rule 1 CPC, also requires the petitioner to set out the reasons as to why summons have to be issued to witnesses, no specific reasons have been assigned in the affidavit filed by the petitioner in E.A. No.14 of 2025. He would therefore pray for dismissal of the revision.

7. I have carefully considered the submissions advanced by the learned counsel on either side.

8. In view of the fair concession