Narayanan vs Padmanabhan

Kumara Pillai, J.—The facts necessary for the disposal of this civil revision petition are as follows: When the decree-holder applied for delivery of possession of the decree schedule properties, the present revision petitioner, who is a stranger to the suit filed an obstruction petition and ultimately that obstruction petition was dismissed by the High Court on the ground that, being a stranger to the suit he had no right to approach the court except under Order XXI, rule 100, Code of Civil Procedure, that is to say, on the ground that he could file the obstruction petition only after dispossession by the amin. The High Court''s decision is reported in 1955 KLT 413. Thereafter certain proceedings intervened, and ultimately the decree-holder himself made an application to the lower court in pursuance of which notice was issued to the revision petitioner to show cause why his obstruction should not be removed and the property delivered over to the decree-holder. At that stage and in answer to the notice to him the revision petitioner again came forward with a petition saying that he was in possession of the property independently of the judgment-debtors and the property should not therefore be delivered over to the plaintiff. Without inquiring into this petition and holding that it was bound by the decision in 1955 KLT 413 the lower court dismissed the obstruction petition. In the order dismissing the obstruction petition it observed:

In view of the ruling reported in 1952 KLT 660 and 1955 KLT 413 I find that the present petitioner obstructor is not entitled to make such objections, though objections appear to have been filed in pursuance to a notice issued from court. The petitioner is competent to approach the court for reliefs only after actual dispossession under Order 21, rule 100. In the result, the objections raised by the petitioner are over-ruled.

It is to quash this order that this civil revision petition has been filed.

I have no doubt that the order complained against in the revision petition is unsustainable. Order XXI, rule 97, Civil Procedure Code, provides :

1, Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction.

The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

Whether the revision petitioner had the right to approach the court under Order XXI, rule 100 or not, at the time of the application which was dismissed by the decision in 1955 KLT 413, there can be no doubt of the fact that the decree-holder when he apprehends obstruction from a stranger is entitled under Order XXI, rule 97, to move the court to remove the obstruction and when such an application is made the court is bound under clause 2 of rule 97 to issue notice to the person from whom obstruction is expected, to hear his objections, investigate the same, and make a decision in the matter. It was invoking this jurisdiction under rule 97 that the decree-holder made the application to the lower court to issue notice to the obstructor i.e., the revision petitioner, and the notice issued to him was issued under the provisions of clause 2 of rule 97. The lower court was, therefore, bound to investigate his objections and record a decision thereon. This is not a case in which a stranger, who claims possession, has approached the court but a case in which the decree-holder came to the court complaining that the stranger''s obstruction should be removed. The stranger was entitled to oppose the decree-holder''s application and he having filed his objections the court should have investigated his objections under clause 2 of rule 97. For these reasons, I hold that the order of the lower court is unsustainable and allow the civil revision petition with costs.