Nallasivam vs Dakshinamurthy and Baskaran

T.V. Masilamani, J.—Heard the learned counsel for both sides.

The revision petitioner is the decree-holder/plaintiff in O.S.No.461 of 1980 on the file of the District Munsif, Poonamallee. He filed the

execution petition in E.P.No.587 of 1981 on the file of the District Munsif, Poonamallee for delivery of the property as per the decree and since

the second respondent obstructed the delivery sought for by the decree-holder in E.A.No.800 of 1985, he filed the petition in E.A.No.1390 of

1985 under Order 21 Rule 97 and Section 151 C.P.C. for removal of obstruction and delivery of possession of the property. Since the said

application was not filed within 30 days under Article 129 of the Limitation Act, the executing Court dismissed the same. Hence the revision

petitioner preferred the revision against the said order in C.R.P.No.816 of 1997. At the time of admission stage itself, after hearing the learned

counsel for the petitioner, this Court rejected the same by an order dated 31.7.1997 and ordered notice of motion in this revision.

The only question to be decided in this revision petition is whether the revision is maintainable in law in view of the provision under Order 21

Rule 103 C.P.C. for the simple reason that there had been an adjudication made under Order 21 Rule 98 C.P.C. by the executing Court in the

impugned order in E.A.No.800 of 1985 wherein it was held that since the decree-holder is not entitled to maintain the petition in E.A.No.1390 of

1985 for removal of the obstruction, consequently he is not entitled to any relief in the petition to order for delivery of the property as per the sale

certificate.

The learned counsel for the revision petitioner has argued at length that the revision is not barred by rejudicata in view of the ratio laid down in

S.RAJENDRAN v. ARULMIGHU KAPALEESWARAR DEVASTHANAM (IV (2000) C.L.T. 415 and therefore, he has urged that the

executing Court ought not to have dismissed the petition for delivery of the property in view of the order in E.A.No.1390 of 1985 which was filed

for removal of obstruction.

On the contrary, the learned counsel for the respondents has argued that since the petition for delivery of the property was dismissed by the

executing Court on the ground that the decree-holder is not entitled to the relief for removal of obstruction, such an order passed under Order 21

Rule 98 C.P.C. is only appealable under Order 21 Rule 103 C.P.C. and that therefore the revision before this Court is not maintainable. In this

context, he has referred me to the decision Janaki Ammal Vs. Ganapathi Konar and Others, in support of his contention.

Though the learned counsel for the revision petitioner has made an attempt to show that since the executing Court has not passed a considered

order in E.A.No.800 of 1985, but only dismissed the same in view of the order passed in E.A.No.1390 of 1985, this revision is maintainable. On

the contrary, the learned counsel for the respondents has pointed out with reference to the ratio laid down in the said decision that even if the

impugned order was wrong, it should also be a matter for challenge in appeal and therefore he has urged that in any view of the matter, this revision

is not maintainable in law.

The ratio laid down in the decision referred supra on this aspect of the matter may be extracted hereunder to appreciate the facts and

circumstances of this case. Quoting the decision rendered by the Supreme Court in Bhanwar Lal Vs. Satyanarain and another, with reference to

the observations therein in paragraph 4, it was held as follows:-

It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused

by the object or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103

and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 amendment to C.P.C. that may be pending on the

date of the commencement of the amended provisions of C.P.C. was secured. Thereafter, under the amended Code, right of suit under Order 21,

Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property

under execution needs to be adjudicated under Order 21, Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of

appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete one in

itself.

Similarly, it was also held in the said decision (vide) para 8 as follows:-

Even if the Order is in any way wrong or vague, that is also a matter which can be challenged only in an appeal.

Hence, this Court is of the considered view that the revision petition is not maintainable.

Thus, the Civil Revision Petition is dismissed accordingly. However, there will be no order as to costs.