Kayalvizhi vs S. Parthasarathy and K. Navamani

S. Tamilvanan, J.—This Civil Revision Petition has been preferred against the Fair and Decreetal Order, dated 20.01.2007 made in

E.A.No.322 of 2006 in E.P.No.67 of 2004 in O.S.No.664 of 1999 on the file of the Sub-Court, Tiruppur. The first respondent/decree-holder

filed the Execution Petition, seeking the relief under Order 21 Rule 35 of the CPC and the Execution Application under Order 21 Rule 97 of the

CPC for removal of obstruction made by the revision petitioner, the second respondent therein and to put the first respondent in the possession of

the property. It is an admitted fact that no counter was filed by the petitioner herein and the other respondent/judgment-debtor and there was no

representation for the said respondents before the Executing Court. Hence, the petitioner herein and the other respondent were set exparte and the

petition filed by the first respondent/decree-holder herein was allowed by order, dated 20.01.2007 passed by the court below. Aggrieved by

which, this revision has, been preferred by the petitioner herein.

Mr. N. Manokaran, learned counsel appearing for the revision petitioner submitted that the petition filed under Order 21 Rule 97 CPC cannot

be disposed summarily by the Executing Court. According to him, being an appealable decree, the Court below could have passed the interim

order, like a decree in a suit, as per Order 21 Rule 101 CPC. In support of his contention, he relied on the decisions 1 Shreenath and Another Vs.

Rajesh and Others, and 2 Tanzeem-e-Sufia Vs. Bibi Haliman and Others, and placed his argument to set aside the impugned order and direct the

court below to provide reasonable opportunity to the revision petitioner and to dispose the same on merits.

Mr. R. Sundar Rajan, learned counsel appearing for the first respondent/decree-holder submitted that it is a clear abuse of process of the Court,

since the revision petitioner is the wife of the judgment-debtor, living with her husband under one roof, as she is bound by the decree, and Order

21 Rule 35 CPC is applicable to the facts and circumstances of this case. According to the learned counsel for the first respondent/decree holder,

the revision petitioner herein is admittedly the wife of the second respondent/judgment-debtor and not a third party. She has no independent right in

the property, however, she filed this Civil Revision Petition, without seeking her remedy under Order 21 Rule 106 CPC before the Executing

Court, which is a clear abuse of process of Court. In support of his contention, the learned counsel appearing for the first respondent cited the

following decisions and sought for dismissal of the revision petition :

Shri Devi vs. Kashiram, AIR 1984 Rajasthan 94

Yashodanand Garg Vs. Hindustan Commercial Bank, Kanpur and Others,

It is not in dispute that the suit in O.S.No.664 of 1999 had been filed for specific performance by the first respondent/decree holder against the

second respondent herein. After duly contested, the suit was decreed in favour of the first respondent on 27.11.2001. Pursuant to the decree, the

first respondent filed Execution Petition in E.P.No.12 of 2003 and also obtained sale deed executed, as per the order of the Executing Court.

Subsequently, as the second respondent/judgment-debtor did not hand over the possession of the suit property, the first respondent/decree-holder

filed E.P. No.67 of 2004, wherein delivery was ordered, directing the second respondent to hand over the possession of the property. However,

the revision petitioner filed a petition as an obstructor/third party. Hence, the Execution Application in E.A.No.322 of 2006 was filed by the first

respondent/decree-holder against the judgment-debtor and his wife, the revision petitioner herein. As there was no representation for the

judgment-debtor and his wife, the respondents therein, the said application was allowed by the Court below. Aggrieved by which, this revision has

been preferred.

Mr. N. Manokaran, learned counsel appearing for the revision petitioner drew the attention of this Court to the copy of the Judgment, dated

27.09.2006 passed in O.S.No.192 of 2006, wherein the revision petitioner and her minor children represented by their mother and next friend, the

revision petitioner herein filed the said suit and obtained an exparte decree against the second respondent herein, stating that the plaintiffs therein

are entitled to 2/3rd shares in the property and also for her maintenance, which was ordered in favour of the revision petitioner against the second

respondent herein and accordingly towards her maintenance, for a sum of Rs. 500/- per month, a charge was created. According to the learned

counsel for the revision petitioner, there is a Judgment and Decree in favour of the revision petitioner, the revision petitioner has also filed her

petition as obstructor/third party before the Executing Court, stating that the second respondent herein was entitled to only 1/4th share in the

property and the children of the second respondent are entitled to 3/4th share and that there is a charge over the share of the second respondent in

the property obtained by the revision petitioner towards her maintenance.

As contended by the learned counsel appearing for the first respondent, the Execution Petition was filed under Order 21 Rule 35 CPC,

however, removal of obstruction has been sought for only under Order 21 Rule 97 CPC, as per the copy of the petition available in the typed set.

In the affidavit filed by the first respondent decree-holder in support of E.A.No.322 of 2006, the first respondent/decree-holder has stated that the

schedule mentioned property is the self-acquired property of the second respondent herein/judgment-debtor and he entered into the registered sale

agreement with the first respondent/decree-holder on 15.05.1998 to sell the property for a sale consideration of Rs. 1,10,000/- and on the date of

agreement itself, a sum of Rs. 1,00,000/- was paid as advance and the balance amount of sale consideration was to be paid within two years from

the date of agreement. As the second respondent/judgment-debtor had not come forward to perform his part of the contract, the first

respondent/decree-holder filed the suit in O.S.No.664 of 1999 on the file of the Subordinate Judge, Tiruppur and after contest, the suit was

decreed. The first respondent had also deposited the balance of consideration, as per the agreement for sale before the Court below.

Pursuant to the decree, the first respondent/decree holder filed Execution Petition. As per the order passed in E.P.No.12 of 2003, sale deed

was also executed and registered on 28.01.2004 in favour of the first respondent and therefore, the first respondent herein filed Application for

delivery of possession. According to the first respondent/decree holder, the revision petitioner herein and the second respondent/judgment-debtor

are living as husband and wife under one roof. As such, the revision petitioner was fully aware of the above said sale agreement, decree passed in

the suit, and also the execution of the sale deed in favour of the first respondent. However, the second respondent instigated the revision petitioner,

his wife to obstruct the ameen from executing the order, effecting delivery of possession, which is an abuse of process of the Court.

Learned counsel appearing for the first respondent/decree-holder has also drawn the attention of this Court to the copy of the decree obtained

by the revision petitioner in O.S.No.192 of 2006 and strenuously argued that the exparte decree was obtained by the revision petitioner by filing a

collusive suit against her husband, the second respondent/judgment-debtor with a view to protract the proceedings. According to him, the

judgment-debtor instigated his wife, who has no independent right in the property and who is also living with him to file the obstruction petition, so

as to prevent the first respondent/decree-holder from taking delivery of possession of the property, pursuant to the decree and the sale deed

obtained by the first respondent/decree-holder, through court of law.

It is not in dispute that the first respondent/decree-holder has specifically averred that the revision petitioner and the second respondent are living

under one roof as husband and wife and that the revision petitioner has no independent right, since the property was the Self-acquire property of

the second respondent/judgment-debtor. The aforesaid averments of the first respondent/decree-holder filed in the form of an affidavit has not

been disputed by the revision petitioner, by way of filing her counter in the Execution Petition. Admittedly, in the suit filed in O.S.No.192 of 2006,

the revision petitioner had not arrayed the first respondent/decree-holder as one of the defendants, though the suit was filed subsequent to the

decree obtained by the first respondent in O.S.NO.664 of 1999 and after the sale deed was executed in favour of the first respondent/decree-

holder on 28.01.2004, pursuant to the order of the Court below. It is not in dispute that after the sale deed was executed through the Executing

Court on 28.01.2004, the revision petitioner filed the suit in O.S.No.192 of 2006 only in the year 2006 against her husband, the second

respondent herein.

As contended by the learned counsel for the first respondent/decree-holder and as per the typed copy of the decree filed by the revision

petitioner, 2/3rd share was allotted, by way of partition decree to the plaintiffs therein, however, in the obstruction petition filed by the revision

petitioner, she has stated the same as share. Within 38 days of filing of the suit in O.S.No.192 of 2006, the revision petitioner has obtained the

exparte decree on 27.09.2006. However, there is no reason available for the revision petitioner for remaining absent and being set exparte along

with her husband, the second respondent herein, before the Executing Court. According to the learned counsel appearing for the first

respondent/decree holder, this Civil Revision Petition is only an attempt by the judgment-debtor to protract the proceedings, by instigating his wife,

the revision petitioner herein.

As contended by the learned counsel for the first respondent, under Order 21 Rule 106 CPC, there is a provision for setting aside the exparte

order passed against any party, however, the revision petitioner did not file any petition before the Court below for setting aside the impugned

order passed by the court below. Only with a view to protract the proceedings, preferred this Civil Revision Petition.

This Revision has been preferred u/s 115 of the Code of Civil Procedure. As per this section, the High Court may call for the records of any

case, which has been decided by any court subordinate to the High Court, in which no appeal lies thereto. If such subordinate court appears to

have exercised the jurisdiction not vested with it by law or ought to have failed to exercise of its jurisdiction so vested or to have acted in exercise

of its jurisdiction illegally or with material irregularity. The provision is so clear u/s 115 CPC that this Court can interfere with the order passed by

any subordinate Court, only if there is no appeal lies thereto and when such subordinate court appears to have exercise the jurisdiction not vested

with it by law or fail to exercise the jurisdiction, so vested, though the court ought to have acted in exercise of its jurisdiction or exercised its

jurisdiction illegally or with material irregularity, otherwise, this Court cannot interfere with the order passed by the court below, by way of revision.

In the instant case, the revision petitioner and her husband, the judgment-debtor were remained absent and were set exparte by the Court

below. As per Order 21 Rule 106 CPC, provision to set aside the exparte order is available, however, without filing any application before the

Court below, to set aside the exparte order, the revision petitioner preferred this Civil Revision Petition, with a view to adopt delay tactics and to

protract the E.P. Proceedings.

The Hon''ble Supreme Court in Shreenath and Another Vs. Rajesh and Others, has held that under Order 21 Rule 35 (1) CPC, the Executing

Court delivers actual physical possession of the disputed property to the decree-holder and if necessary, by removing any person bound by the

decree, who refuses to vacate the said property. Order 21 Rule 97 CPC, conceives of resistance or obstruction to the possession of immovable

property, when made in execution of a decree, by ""any person"", which may be either by the person bound by the decree, claiming title through (1)

the judgment-debtor or (2) claiming independent right of his own including a tenant, not a party to the suit or (3) even a stranger.

It is not in dispute that the first respondent herein as decree-holder filed the E.P. under Order 21 Rule 35 (1) before the Executing Court,

seeking delivery of possession of the disputed property to him, by removing the person bound by the decree, who refuses to vacate the suit

property.

According to Mr. R. Sundar Rajan, learned counsel appearing for the first respondent/decree-holder, Order 21 Rule 35 (1) CPC is applicable

in this case, since the revision petitioner is none other than the wife of the second respondent/judgment-debtor, who has no independent right, but

claiming right only through her husband, the judgment-debtor and as such, the revision petitioner is a person bound by the decree. The revision

petitioner had filed her objection before the E.P. Court, as if she was a third party, obstructor, though she had no independent right. The material

records available is sufficient to establish that she has no independent right in the property and being the wife of the judgment-debtor, she is a

member of the family of the judgment-debtor and she is bound by the decree.

In the instant case, by way of filing an affidavit, the first respondent/decree-holder has stated that the schedule mentioned property is the self-

acquired property of the second respondent/judgment-debtor and as such, he entered into the registered sale agreement on 15.05.1998 to sell the

property to the first respondent/decree-holder. The revision petitioner, who is living with her husband, the second respondent/judgment-debtor

under one roof is fully aware of the sale agreement and also the execution of the sale deed in favour of the first respondent/decree-holder and

under the instigation of the second respondent, she has filed the obstruction petition, however, she has no independent right.

The trial court decreed the suit in O.S.No.664 of 1999 in favour of the first respondent/decree-holder on 27.11.2001 for specific

performance. Therefore, as contended by the learned counsel for the first respondent, it can normally be inferred that the revision petitioner, who is

living with her husband under one roof was aware of the sale agreement and the suit, that was decreed and also the sale deed executed, pursuant

to the decree. However, she filed the suit in O.S.No.192 of 2006 without impleading the first respondent/decree-holder as a necessary party,

though the sale deed was executed in favour of her through the Executing Court in the year 2004 itself.

Under Order 21 Rule 35 (1) CPC, the Executing Court delivers actual physical possession of the disputed property to the decree-holder and,

if necessary, by removing any person bound by the decree, who refuses to vacate the said property. Therefore, Order 21 Rule 35 (1) CPC

attracts any obstructor bound by the decree, who refuses to vacate the said property. According to the learned counsel appearing for the first

respondent/decree-holder, the revision petitioner, being the wife of the judgment-debtor, who has no independent right is only a person bound by

the decree. Therefore, Order 21 Rule 35 (1) CPC is applicable in this case. As per Order 21 Rule 97 CPC, it is applicable to any person either

bound by the decree, claiming title through the judgment-debtor or claiming independent right of his own, including a tenant not party to the suit or

even a stranger. The same refers to Order 21 Rule 101 (as amended by 1976 Act) under which, all questions relating to right, title or interest in the

property arising between the parties under Order 21 Rule 97 or Rule 99, which shall be determined by the Executing Court and not by a separate

suit. Therefore, as per the amendment, one need not go for a fresh suit, since all matters pertaining to that property including any obstruction by a

stranger are adjudicated in the executing proceedings.

It is clear that the expression ""any person"" in rule 97 (1) is used clearly in order to widening the scope of power, so as to enable the executing

court to adjudicate the claim. Therefore, by use of the words any person under Order 21 Rule 97 CPC, it included all persons resisting the

delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their

own, including a stranger. The decision rendered by the Hon''ble Apex Court in Shreenath and Another Vs. Rajesh and Others, throw much light

on the legal aspect that irrespective of the fact that the obstructor is a person bound by a decree or a tenant or a stranger, the petition under Order

21 Rule 97 CPC is legally maintainable. The learned counsel appearing for the first respondent has also not disputed the legal position with regard

to scope of Order 21 Rule 97 CPC.

It is also a settled proposition of law that under Order 21 Rule 101 CPC, all disputes between the decree-holder and any such person as

obstructor has to be adjudicated by the executing court. Therefore, a party is not thrown out to relegate to the long-drawn-out arduous procedure

of a fresh suit, in order to avoid hardship to both the decree-holder and other persons, claiming title on their own right to get it adjudicated in the

very execution proceedings.

In the instant case, admittedly, the first respondent/decree-holder filed the suit in O.S.No.664 of 1999, based on the registered agreement of

sale, dated 15.05.1998, whereby the second respondent/judgment-debtor agreed to sell the property for a sale consideration of Rs. 1,10,000/-,

out of which Rs. 1,00,000/- has been received as advance and part of the sale consideration. Within the time limit, he filed the suit, after contest,

the suit was decreed on 27.09.2006. Pursuant to the decree, he filed E.P.No.12 of 2003 for execution of sale deed relating to the schedule of

property, accordingly, the firs respondent/decree-holder got the sale deed executed through the court below in his favour on 28.012004. The

afore-said facts are not in dispute, subsequently, he filed the petition, seeking delivery of possession by filing E.P.No.67 of 2004. At that time, the

revision petitioner, wife of the judgment-debtor filed obstruction petition stating that she filed a suit against her husband/judgment-debtor in

O.S.No.192 of 2006 for partition and accordingly, the suit was decreed in favour of the children of the revision petitioner to allot/4 share in their

favour and also got attachment of �th share of her husband, the second respondent/judgment-debtor.

As contended by the learned counsel appearing for the first respondent, this Court has to consider the bonafide of the revision petitioner.

Based on the conduct of the parties, bonafide can be decided by any court. The revision petitioner filed the suit only in the year 2006, though the

first respondent/decree-holder had obtained a contested decree on 27.11.2001 and got the sale deed executed, pursuant to the order of the Court

on 28.01.2004. In the affidavit filed by the first respondent/decree-holder, it has been clearly stated that the schedule of property is the self-

acquired property of the second respondent/judgment-debtor and the second respondent had entered into the registered agreement on

15.05.1998 to sell the property in favour of the first respondent/decree-holder. After contest, the decree was passed and that the revision

petitioner and the second respondent/judgment debtor are living as husband and wife under one roof. In the affidavit, the first respondent/decree-

holder has averred that the revision petitioner was fully aware of the sale agreement between himself and the second respondent/judgment-debtor,

the suit that was decreed, after contest and also the sale deed executed in favour of the first respondent/decree-holder. However, the revision

petitioner has not chosen to file any counter before the court below, denying the averments. She has not filed any supporting document to show

that the property was the joint family property of the second respondent/judgment-debtor and his sons. Admittedly, there is no decree of divorce

between the revision petitioner and the second respondent/judgment-debtor. The averments of the first respondent/decree-holder that the revision

petitioner and the second respondent/judgment-debtor are living under one roof is also not controverted.

As contended by the learned counsel for the first respondent/decree-holder, there is no necessity for the sons of the revision petitioner and the

judgment-debtor to be represented by their mother, the revision petitioner in the suit in O.S.No.192 of 2006, when father is available. Within 38

days from the date of filing of the suit, on 27.09.2006, the revision petitioner herein obtained an exparte decree against her husband, the judgment-

debtor. In the copy of the decree, the share of the plaintiff''s therein has been stated as 2/3rd, but in the obstruction petition that had been changed

as 3/4 by the revision petitioner for the reasons best known to the revision petitioner. The aforesaid circumstances show that there is no bonafide

grounds for filing the petition by the revision petitioner, even she has not arrayed the minor children of the revision petitioner and he judgment-

debtor as parties in the obstruction petition. Similarly, the first respondent/decree-holder was not arrayed as defendant in the suit filed by the

revision petitioner.

It is seen from the impugned order that the revision petitioner had been set exparte, due to her non-appearance, after due service of notice,

hence, she could have filed a petition under Order 21 Rule 106 CPC to set aside the exparte order, she has not filed any such petition, but directly

preferred this revision, which is not legally maintainable. As per Section 115 CPC, it is clear that only if no appeal lies against the Order passed by

the subordinate court, the revision is maintainable. Therefore, if any appeal provision is available before the appellate court against the impugned

order, the aggrieved person cannot maintain revision, u/s 115 CPC before this Court. In the instance case, against the impugned order, as per

Order 21 Rule 106 CPC, the petitioner could have filed an application to set aside the exparte order in the same court, but she has not chosen to

file any such application before the court below. When there is a remedy available as per law before the same court, the revision petitioner is not

entitled to invoke the jurisdiction of this Court, by way of preferring revision u/s 115 of the CPC and further, it is clear that there is no merit in

favour of the revision petitioner, except the delay tactics being adopted by her.

As contended by the learned counsel appearing for the first respondent/decree-holder, the fact and circumstances would show that there is a

clear abuse of process of the court and therefore, the Civil Revision Petition fails as the same is not sustainable in law. In the result, the Civil

Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed. However, to meet the ends of

justice, two months time is granted for the revision petitioner from the date of receipt of a copy of this order, to vacate and hand over the

possession of the property to the first respondent/decree-holder.