Arjunan Achary Chockalingam vs Abraham Thankamma and Others

V. Bhaskaran Nambiar, J.—The petitioner, a stranger to the decree, resisted the execution of the decree obtained by the 1st respondent for possession of immovable property, An application was filed under order XXI Rule 97. The executing court passed an order on her application thus:-

Dismissed (vide separate order on E.P. dt. today)

and in the execution petition the order reads thus:-

The order of the court to have the decree holder examined on commission is not complied with by the decree holder and it is reported by the commissioner that the decree holder''s counsel has told him that the decree holder need not be examined on commission till the matter is referred to the Land Tribunal.

The decree holder does not co-operate with the commissioner in executing the commission. That means that he "does not propose to prosecute the E. P. as per order of the Court. The E. P. is dismissed

The decree-holder filed an appeal before the Sub Court, Alleppey. The Sub Court allowed the appeal and held that the order of the executing court dismissing the application under order XXI Rule 97 was wrong and directed that application to be considered afresh It also observed that the setting aside of the order passed in the execution application regarding removal of obstruction will result in the revival of the execution petition. It is against this order that this revision has been filed.

The main contention advanced by the learned counsel for the petitioner is that the appeal before the Sub Court was not competent. He contended that an appeal is available only under order XXI Rule 103 which reads thus:-

Orders to be treated as decrees.- where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree

He contended that there has been no adjudication under Rule 98 or Rule 101, there is no consideration of the question on the merits and thus there was no competent appeal. But, in any case, it is submitted that even if there cannot be an appeal against the order in the " obstruction petition, there was no appeal provided to the Sub Court against the order dismissing the execution petition and therefore the Sub Court did not have jurisdiction to direct the revival of the execution petition winch was already dismissed.

The scheme of Order XXI Rules 97, 98 and 101 would show that a holder of a decree for possession of immovable property may make an application to the court executing the decree if he has any complaint of any resistance offered by any stranger to the execution of the decree or when there is any obstruction from any other quarter. In that application the court has got jurisdiction to decide all questions including the question relating to right, title or interest in the property arising between the parties to the proceeding, or their representatives and which are relevant for adjudication of the application. After the adjudication under Order XXI Rule 101, the court has to pass under Order XXI Rule 98 either (a) making an order allowing the application and directing that the applicant be put into the possession of the property for dismissing the application or (b) pass such order as, in the circumstances of the case, it may deem fit. Thus the final order in a petition for removal of obstruction is what is contemplated under order XXI Rule 98. The proceedings initiated under order XXI Rule 97 are required to be enquired into under order XXI Rule 101 and disposed of under order XXI Rule 98. The adjudicatory process under order XXI Rule 101 contemplates an application of the mind, a consideration of the claim on the merits and a conclusion based on reasons. Even then, there may be cases where the court is constrained to reject the application without any adjudication at all. Where no adjudication is required in any case, and the application has to be dismissed without any investigation, still the court has the duty to pass final orders under order XXI Rule 98. It is the order under order XXI Rule 98 that disposes of the application under order XXI Rule 97 Rule 103 provides an appeal against that order. If this is the policy and purpose of the provisions, as I understand it, it follows that the order passed by the court in this case, dismissing the application for removing obstruction under order XXI Rule 97 was an order under order XXI Rule 98, appealable under Order XXI Rule 103.

The word ''adjudication'' mentioned in Order XXI Rule 103 has to be understood in the context in which it is made for, the word ''adjudication'' occurs in Order XXI Rule 101 Which does not provide for appeal and the word ''adjudication'' does not occur in order XXI Rule 98 which provides for an appeal. The expression ''adjudication'' and ''determination'' thus have to be understood in their context, namely, that it is the determination contemplated under Order XXI Rule 98, which is referred to in Order XXI Rule 103 as the "adjudication" for the purposes of the appeal. The dismissal of an application under Order XXI Rule 97 in so far as the decree-holder is concerned, is an "adjudication" so far as his right to continue the execution petition. It is an "adjudication" so far as the obstructor is concerned for, his obstruction can no longer be removed by the decree-holder. In this sense also the order dismissing the application for removing resistance of obstruction is well within the ambit of Order XXI Rule 103. The court below was therefore, right in holding that the appeal was maintainable and in exercising its appellate powers.

The second contention urged by the counsel for the petitioner is that even if an appeal lay against the order in the application under Order AXXI Rule 97, the dismissal of the execution petition was not appealable. Stated thus, the argument is attractive. However, it has to be noted in this case the application for removal of obstruction was dismissed as per an order passed in the execution petition. So the order dismissing the petition under order XXI rule 97 was part of the order made in the execution petition if not the whole of it. The setting aside of that order erased the entirety of the order that was passed in the execution petition. In this view of the matter, the court below was right in observing that the execution petition stood revived in the peculiar circumstances of the case. While these are all the technical questions raised in this revision. I think B this is a matter where justice cannot suffer. The revision petitioner claims to be a lessee seeking protection u/s 106 of the Land Reforms Act. He was not a party to the suit. Where questions of tenancy u/s 106 of Act 1 of 1964 is raised in execution, under these circumstances, it is the duty of court to refer the matter to the Land Tribunal u/s 125 (3) of the Act. There was no necessity to examine the decree holder before the finding was obtained by the Land Tribunal. The executing court was wrong is dismissing the application on clearly untenable grounds and the court below was right is setting aside that order. The execution court will therefore refer the question of tenancy raised by the revision petitioner before the appropriate Land Tribunal and after receiving its finding dispose of the application under order XXI Rule 98 and pass appropriate orders in the execution petition also according to law.

C.R.P. is disposed of as above. No costs.