Adimoolan Mudaliar vs P.L. Unnamalai Achi and Others

Shivaraj Patil, J.—This appeal is by a person, who claims to be in possession of the property in question which is a subject-matter of the

decree passed by this Court in C.S. No. 49 of 1975 which is in execution now, in E.P. No. 71 of 1993, against the order dated 23.12.1996 made

by the learned single Judge in Application No. 4325 of 1996 in the said Execution Petition.

Briefly stated, the facts and events which are considered necessary and relevant for the disposal of this appeal, are the following:

C.S. No. 49 of 1975 was filed by the decree-holder for setting aside the sale deed dated 20.5.1965 in respect of the suit schedule property and

for recovery of possession. Though the said suit was dismissed by the learned single Judge on original side, it was reversed by the Division Bench

in O.S.A. No. 93 of 1979 and the sale deed dated 20.5.1965 executed by the first defendant in favour of the second defendant was held void,

and further the defendants were directed to deliver possession of the property to the plaintiff. SLP (Civil) No. 7849 of 1988 filed against the

Judgment and decree passed by the Division Bench of this Court in the aforementioned appeal was also dismissed on 11.12.1992.

The decree-holder filed E.P. No. 71 of 1993. On 5.4.1994 orders were passed for issuing warrant for delivery of possession. When the said

warrant was sought to be executed, the appellant herein obstructed the delivery on 27.4.1994. On the same day the defendant in the suit filed

application to set aside the warrant for delivery, and stay was granted in the Execution Petition staying further proceedings. The stay order was

vacated on 9.12.1994 on the application of the decree-holder. On 1.3.1995 the decree-holder applied for amending the door Number of the

property and also sought police help which prays were granted by the Master by order dated 20.7,1995.

Within a fortnight thereafter, the appellant filed Application Nos. 3896 of 1995 and 3897 of 1995 obstructing the execution of warrant and

seeking stay of the order directing issue of warrant. An ex parte stay was granted by the Master on 3.8.1995. On notice the decree-holder,

besides filing counter affidavit to the said applications, filed an Application No. 4813 of 1995 for removal of the obstruction. The Master by his

order dated 18.11.1996 after holding enquiry on Application Nos. 3896, 3897 and 4813 of 1995, directed to re-issue the warrant.

The appellant filed Application No. 4925 of 1996 to set aside the order dated 18.11.1996 passed by the Master in Application No. 4813 of

1995 in E.P. No. 71 of 1993 in O.S. No. 49 of 1975, and also to stay further proceedings in the said Execution Petition. The learned single Judge,

after hearing the parties and on detailed examination of the contentions raised, passed the order under appeal, dismissing the Application No. 4325

of 1996 filed by the appellant. Hence this appeal filed by the appellant as already stated above.

Shri G. Subramaniam, learned senior Counsel for the appellant urged that-

(i) the Application 4813 of 1995 was clearly barred by time as it was not made within a period of 30 days from the date of actual obstruction i.e.,

27.4.1994 having regard to Article 129 of the Limitation Act;

(ii) the possession of the appellant over the suit property was not under the judgment-debtor, or the appellant did not claim his possession over the

property under the judgment-debtor, or that he was resisting delivery of possession at the instance of the judgment-debtor; he refers to his

possession over the property prior to 1970 i.e., prior to filing of the suit itself; hence the order made for removal of obstruction was not correct

and it was invalid;

(iii) in view of the amended provisions of Order 21, Rules 91 to 98, it is open to the decree-holder to file a separate suit. Under the circumstances

the learned single Judge was not right in dismissing the Application No. 4325 of 1996 by the order under Appeal. In support of his submissions,

the learned senior counsel has placed reliance on the following decisions:

(i) Bhanwar Lal Vs. Satyanarain and another, ; (ii) Babulal Vs. Raj Kumar and Others, ; (iii) Vegulla Satyanarayana Murthy and Others Vs. Alluri

Annapurnamma and Others, ; and (iv) Ambika Prasad Thakur and Ors. v. Ram Ekbal Rai AIR 1996 S.C. 805.

Per contra, Shri C.T. Mohan, learned Counsel for the respondents argued in support and justification of the order under appeal. He submitted

that the obstruction said to have been made on 27.4.1994 was no obstruction in reality as Door Number of the property given in the decree was

different and as such the decree could not be executed on 27.4.1994. Thereafter Application Nos. 3433 of 1995 and 3434 of 1995 were filed by

the decree-holder seeking police protection and for amendment of the door number in the decree. The said applications were allowed on

20.7.1995. On the same day the learned Master was pleased to pass orders to issue warrant for delivery of possession. The appellant filed

Application No. 3896 of 1995 objecting and obstructing for executing the warrant for delivery of possession and for grant of stay. An ex parte

stay was granted on 3.8.1995. The decree-holder filed Application No. 4813 of 1995 on 18.8.1995 for removal of obstruction which was

allowed on 18.11.1996 and order was passed to re-issue warrant to execute the decree and deliver possession. The warrant was issued on

19.11.1996 pursuant to the order made in Application No. 4813 of 1995. It is thereafter the appellant filed Application No. 4325 of 1996 to set

aside the order dated 18.11.1996 passed by the learned Master who had ordered removal of obstruction and execution of the decree.

On the basis of these events, the learned Counsel for the respondents submitted that Application No. 4813 of 1995 filed on 18.8.1995 was

clearly within the time reckoned from 3.8.1995 the date on which the appellant filed Application No. 3896 of 1995 obstructing and objecting for

executing the warrant for delivery of possession. The learned Counsel also submitted that the appellant has taken inconsistent stand. Once he has

stated that he was claiming his possession under the judgment-debtor, and at some other time he has stated that he did not claim any right or

possession under the judgment-debtor. Further the appellant submitted to the jurisdiction and fully participated in the enquiry held in the application

made for removal of obstruction; both oral and documentary evidence were brought on record during enquiry. He cannot now turn round and say

that the order passed for removal of obstruction was without jurisdiction. The learned Counsel added that the appellant has not shown the nature

of his right as to title or interest in the property in question; his claim on the basis of adverse possession was neither pleaded properly nor it was

established.

We have carefully considered the submissions made by the learned Counsel for the parties.

The Supreme Court in the case of Bhamvar Lal v. Satyanarain and Anr. (1995) 1 S.C.C. Preferring to Order 21, Rule 35(3), and Order 21,

Rule 97, C.P.C. has held that Order 21, Rule 35(3) postulates that the person in possession of the immovable property covered by the decree

must be per force bound by the decree, in other words the resistor must claim derivative title from the Judgment debtor. Under Order 21, Rule 97,

the Court gets power to remove such obstruction or resistance and direct its officer to put the decree-holder in possession of the immovable

property after conducting an enquiry under Rule 97, and that Rule 97 envisages ''any person'' even including the judgment-debtor irrespective of

whether he claims derivative title from the judgment-debtor, or sets up his own right, title, or interest de hors the judgment, and he resists execution

of decree. Paragraphs 3 and 5 of the said judgment reads thus:

A reading of Order 21, Rule 35(3) postulates that the person in possession of the immovable property to be delivered under the decree must be

per force bound by the decree. Admittedly, Satyanarayan was not a judgment-debtor and that therefore, he is not bound by the decree unless he

claims right, title, or interest through the judgment-debtor, Ram Kishan. The person resisting of possession must be bound by the decree for

possession. In other words the resistor must claim derivative title from the judgment-debtor. The Court gets power under Order 21, Rule 97 to

remove such obstruction or resistance and direct its officer to put the decree-holder in possession of the immovable property after conducting

enquiry under Rule 97.

...

The procedure has been provided in Rules 98 to 103. We are not, present, concerned with the question relating to the procedure to be

followed and question to be determined under Order 21, Rules 98 to 102. A reading of Order 21, Rule 97, C.P.C. clearly envisages that ''any

person'' even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or set up his own right, title or

interest de hors the judgment-debtor and he resists execution of a decree, then the Court in addition to the power under Rule 35(3) has been

empowered to conduct an enquiry, whether the obstruction by that person in obtaining possession of immovable property was legal or not. The

decree-holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could

be done. Each occasion of obstruction or resistance furnishes a cause of action to the decree-holder to make an application for removal of the

instruction or resistance by such person.

In view of the law laid down by the Supreme Court as stated in paragraphs 3 and 5 extracted above, it is clear that the resistance or

destruction offered by a person claiming derivative title from the judgment-debtor is covered by Order 21, Rule 35(3) of the CPC and such

obstruction can be removed. Any other person setting up his own right, title or interest in the property de hors the judgment-debtor, if resists

execution of a decree, then the Court in addition to the power under Rule 35(3) of Order 21 gets powers under Rule 97 of the said Order to

remove the obstruction after enquiry. Further, it is also laid down in the same judgment, in paragraph 5 extracted above that each occasion of

obstruction or resistance furnishes a cause of action to the decree-holder to make an application for removal of the obstruction or resistance by

such person.

In the case on hand, although the resistance was offered for the first time on 27.4.1944 the decree could not be executed on that date as the

door number of the suit property was not correctly mentioned in the decree. The decree-holder made an application for amendment of the decree

on 1.3.1995. The decree was amended accordingly on 20.7.1995. It was thereafter the learned Master ordered issue of warrant returnable by six

weeks on 20.7.1995. The appellant filed Application No. 3896 of 1995 on 3.8.1995 obstructing execution of the warrant for delivery of

possession. The decree-holder filed Application No. 4813 of 1995 on 18.8.1995 for removal of obstruction i.e., within 15 days from the date of

obstruction. In view of these facts, it cannot be said that the Application No. 4813 of 1995 filed for removal Of obstruction was barred by time

under Article 129 of the Limitation Act, even assuming that the first application for obstruction was made on 27.4.1994, in view of the judgment of

the Supreme Court gives a cause of action for filing an application to remove the obstruction. The second occasion of obstruction was on

3.8.1995. Hence the Application No. 4813 of 1995 filed for removal of the obstruction on 18.8.1995 was within time.

A reading of paragraphs 3 and 5 of the judgment of the Apex Court extracted above, do not leave any doubt having regard to Order 21, Rule

35(3) and Order 21, Rule 97 that even against any person, not claiming under, the decree-holder obstruction the execution of decree, an

application can be filed for removal of obstruction. The Apex Court has explained, referring to two Rules mentioned above as to ''any person''

stated in Rule 97. Thus both the contentions of the learned senior counsel that the application filed for removal of obstruction was barred by time,

and that such an application could not be filed against the appellant who did not claim under the Judgment debtor are to be rejected.

The learned single Judge in the order under appeal has noticed that the appellant has not stated anything as to how derived title or interest in

the property. He has simply stated that he has been in possession of the property even prior to 1970, i.e., prior to suit. The appellant has also not

substantiated his plea of perfecting title by adverse possession over the suit property. The learned single Judge has also observed that the

obstructor produced documents Exs. R-1 to R-9. In all these documents the address of the appellant is shown as the suit schedule property. The

earliest of the documents is of the year 1969. All other documents are subsequent to 1977. The suit was filed to set aside the sale deed dated

20.5.1965. The appellant did not even claim that he had acquired any right prior to 20.5.1965. On the materials placed before the Court, the

learned Judge has recorded a finding that the appellant had no independent right over the property at all. Even otherwise, in the light of the

judgment of the Apex Court aforementioned, it cannot be said that the order under appeal is erroneous, in as much as whether the appellant

claimed under the judgment-debtor his possession over the suit property or independent of the judgment-debtor, the learned Master had

jurisdiction to hold an enquiry and to pass an order to remove the obstruction, which the learned single Judge has rightly upheld.

One more submission of the learned senior counsel made on behalf of the appellant to be noticed is that at least the matter could be remitted

for holding an enquiry under Order 2l, Rule 98, C.P.C. We do not think it is either appropriate or necessary to do so as the enquiry is already held

by the learned Master before passing the order on 18.11.1996 in Application No. 4813 of 1995 made for removal of obstruction. It is evident

from the records and even from the ground No. 19 of the appeal memorandum in this appeal that the parties have placed sufficient oral and

documentary evidence in support of their contentions. It is only on the basis of such evidence the order was passed. It is not pleaded that sufficient

opportunity was not given in the enquiry. We may also mention here that the appellant has participated in the enquiry and had the full opportunity.

Further having regard to the material on record also, in our opinion, it is unnecessary to remit the case for holding enquiry again.

The decision in the case Babulal Vs. Raj Kumar and Others, cited by the learned senior counsel for the appellant does not advance the case of

the appellant on the point that enquiry has to be conducted under Order 21, Rule 98 before removal of the obstruction, because, as already stated

above, enquiry has been held in the case on hand. In paragraph 6 of the judgment of the Apex Court reference is made to the Judgment of the

Apex Court in Bhanwar Lal Vs. Satyanarain and another, aforementioned, stating that the controversy as regards applicability of Order 21, Rule

97 to ''any person'' is no longer res-integra.

In view of the law laid down by the Apex Court in clear terms in the case of Bhanwar Lal, aforementioned, we do not think it necessary to

refer to the other decisions cited by the learned senior counsel for the appellant.

In the result, for the reasons stated, we do not find any good or valid ground to interfere with the order under appeal. Hence we dismiss it, but

with no order as to costs in this appeal.