R. Mahadeva vs Smt. Madamma (Deceased) By L.Rs.

The short question that arises for consideration in this matter is the maintainability of the revision petition. The petitioner an applicant in I.A. III before the Executing Court in Execution No. 512 of 1990 on the file of the Court of the Small Causes at Mysore has filed this revision petition against an Order dated 23-10-1997, passed by the Executing Court, dismissing his petition, filed u/s 151, C.P.C. for impleading him as a party to the proceeding.

When the matter came up for hearing on the question of admission, the learned Counsel for the 2nd respondent contended that the revision petition is not maintainable, since the petitioner had to file an appeal if he is aggrieved by the impugned order.

The facts of the case have been stated by the petitioner in the revision petition in Paras 1 to 6. They can be quoted as follows:

"1. The dispute relates to a part of the residential premises of a joint hindu family in which several coparceners have claims. Two widows of two deceased coparceners purported to sell one portion of the said premises described as bearing municipal house No. 3523/1 on 22-5-1947 without realising that they had no right of disposition at all in law and particularly when other coparceners were there.

On the strength of the said sale deed, which was void ab initio, a decree for possession was obtained by the purchaser without impleading any of the coparceners and describing the property purchased as 3523/1. When delivery of possession was sought this petitioner who is residing in the portion bearing No. 3523/2 (M-11) objected and the Amin returned the warrant as unexecutable.

The learned Judge of Small Causes, who notices that the Amin who was to execute the delivery warrant on the strength of the decree said to have been obtained by the respondent/decree-holder returned the warrant unexecuted in view of the discrepancy in the description of the property as pointed out by the petitioner.

Instead of seeking rectification of the sale deed of 1947 an application seeking amendment of the decree in respect of the schedule describing the property as No. 3523/2 was obtained in 1988 without impleading the petitioner herein who is residing in the premises bearing No. 3523/2 since changed to 3523/2 (M-11). No attempt was made to ascertain the correct identity of the different portions of house No. 3523 bearing different sub-numbers.

The petitioner herein filed O.S. No. 2504 of 1990 seeking partition of his share in the joint family property.

As the respondents herein were trying to disturb the petitioner''s peaceful possession, the petitioner filed I .A. III seeking to be impleaded as an objector in Execution Petition No. 512 of 1990. Though the learned Judge of Small Causes notices the grounds urged, he has dismissed the petitioner''s application. Hence this revision petition".

The contention of the petitioner is that he filed an application I.A. III before the Executing Court u/s 151, C.P.C., praying for impleading the applicant as a party to the proceeding and since that application is rejected, he got filed a revision petition against the order. The learned Counsel for the petitioner argued that I.A. III is not an application under Order 21, Rule 97 by an obstructer and therefore the order passed on it cannot be construed as a decree and no appeal lies against such an order. Per contra the learned Counsel for the 2nd respondent argued that though the application I.A. III is filed as an application u/s 161, C.P.C., in fact it is an application under Order 21, Rule 97 of C.P.C. only and the impugned order makes it quite evident. He submitted therefore the revision petition is not maintainable and only an appeal is maintainable. The learned Counsel for the parties relied upon certain decisions in support of their respective contentions. On a perusal of the said decisions and facts of the case, I find, it is not possible to accept the arguments of the learned Counsel for the petitioner. The learned Counsel for the petitioner relied upon a case in Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, , it has been held therein as follows:

"(A) CPC (5 of 1908), Order 21, Rules 97 and 99 -- Execution -- Decree for possession --Obstruction by stranger -- Cannot be said that he can get his claim adjudicated only after losing possession --Stranger can get his claim adjudicated even prior to losing possession to decree-holder".

While there can be no dispute about the principle laid down therein, as rightly submitted by the learned Counsel for the 2nd ''respondent, it does not touch upon the point involved in the matter, as to whether a revision or an appeal is maintainable against such an order. The learned Counsel for the 2nd respondent relied upon two decisions. In Arjun v Zempanna Gangappa Sambanni, it has been held as follows:

"The order passed by the Munsiff on an application filed by the landlords to remove the obstruction offered by the present revision petitioner would operate as a decree, Therefore, the appeal filed by the respondents landlords against the order passed by the Munsiff, rejecting the application of the landlords filed under Order 21, Rule 97 of the C.P.C. is competent and maintainable".

In Paramound Industries Vs. C.M. Malliga, , it has been held as follows:

"Obstruction to be determined under Rules 97, 98, 100 and 101, 103 and 104 whether or not application made under Rule 97 by decree-holder -- Until objections decided, Executing Court not to proceed to execute decree".

Now bearing in mind, the principles enunciated in these decisions if we examine the facts of the case on hand, as rightly pointed out by the learned Counsel for the 2nd respondent, it becomes obvious that the application I.A. III though filed u/s 151, C.P.C., it has been treated as an application under Order 21, Rule 97, C.P.C., and therefore the impugned order comes within the ambit of Order 21, Rule 97, C.P.C. The learned Counsel for the petitioner has filed a copy of the application I.A. III filed in the Executing Court. The prayer in the said application is as follows:

"For the reasons set out in the accompanying affidavit, the applicant humbly prays that this Hon''ble Court be pleased to direct that this applicant should be impleaded as a party in the execution proceedings and an opportunity granted to this applicant to urge his contentions to safeguard his rights in the suit schedule property before the decree-holder/opponent can seek any further relief in this execution case in the interest of justice and equity".

In the affidavit filed along with the application, the applicant has set out the merits of his claim over the decree schedule property. The application was objected to by the decree-holder. In the impugned order in Para 2, the Executing Court has observed "on 21-6-1991, (I.A. III is filed on 12-12-1990) while passing order on I.A. III, this Court has permitted the applicant/obstructer by giving an opportunity to put forth his grievances by adducing cogent evidence etc." This observation goes to show that the Executing Court rightly considered the application I.A. III as an application of an obstructer and deciding to hold an enquiry gave an opportunity to the parties to adduce their evidence on the same. The impugned order further goes to show that accordingly the parties examined themselves and adduced their evidence on the merits of the claim of the applicant in I.A. III. Para 4 of the impugned order goes to show that the Executing Court on the basis of the pleadings of the parties formulated a point for decisions as follows:

"Whether the applicant/obstructer proves that the decree under execution petition that is sought to be executed against his father and others is not binding upon him, as averred in I.A. III?"

The Execution Court has answered this point in the negative, after going through the evidence adduced by the parties and after hearing the learned Counsel for the parties. There is a detailed discussion of the evidence in the impugned order. The operative portion of the order reads as follows:

"The grounds put forth by the applicant/obstructer in support of his claim over the suit property is hereby rejected".

It is therefore very obvious from the prayer made in the application I.A. III as well as the impugned order that what the claimant in I.A. III sought for was an opportunity to establish his case and the Executing Court accordingly, accepting his contention, gave an opportunity to him as well as to the decree-holder, to adduce their evidence on the merits of the claim in I.A. III and decided the matter. Therefore by no stretch of imagination, could it be said that I.A. III is only an application u/s 151, C.P.C., praying for impleading the applicant as a party to the execution proceeding. As I have already pointed out above the very prayer in I.A. III and the affidavit filed along with it goes to show that the prayer of the applicant was not only to implead him as a party to the execution proceeding but also to investigate his claim as an obstructer over the decree schedule property and decide the matter. That is exactly what the Executing Court has done. Now the observations made by this Court at Page 260 in Paramound Industries case, supra, may be seen. It has been held therein as follows:

"1. It is open to the person in possession of an Immovable property, not being a party to the decree for possession or ejectment or an order of eviction passed under the Act, to obstruct the execution either by filing an objection to the execution before the delivery warrant is issued; or to obstruct the execution of the delivery warrant".

This is exactly what the applicant in I.A. III has done. He is not a party to the decree. He wanted to obstruct to the delivery warrant issued in the case by filing the application I.A. III and accordingly it has been entertained and an enquiry is held under Order 21, Rule 97, C.P.C. Therefore, I am unable to accept the contentions of the learned Counsel for the petitioner that I.A. III being only an application for impleading a party u/s 151, C.P.C., a revision petition is maintainable against an order passed on the same. Hence, I find the revision petition is not maintainable. Consequently, the revision petition is dismissed. No costs.