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Judgment
P. Sathasivam, J.—The decree holder in O.S.No.7414 of 1996 on the file of IXth Assistant Judge, City Civil Court, Chennai is the
petitioner in the above revision filed under Article 227 of the Constitution of India.
The petitioner filed the said suit against the first respondent herein initially on the file of Original Side of this Court. The suit was filed for
declaration of title and recovery of possession concerning the Flat No.1-D, Marble Arch, No.4 and 5, Bishop Wallace Avenue (East), Mylapore,
Chennai 600 004. The said suit was filed in the year 1991 and the same was numbered as C.S.No.653 of 1991 and it was transferred to the City
Civil Court and re-numbered as O.S.No.7414 of 1996 on the file of the Second Additional Judge, City Civil Court, Chennai. The first respondent
herein contested the suit and the same was decreed after full trial on 02.08.1999. After the decree, the petitioner filed the execution petition in
E.P.No.151 of 2000 on the file of IXth Assistant Judge, City Civil Court, Chennai. Notice was ordered in the Execution Petition and finally the
first respondent herein was set ex-parte on 08.07.2000 and delivery of possession was ordered. When the bailiff went to the suit property, first
respondent''s people locked the doors and prevented the execution. Therefore, the petitioner filed two Execution Applications in the above
Execution Petition for brake open the lock and police aid respectively. The second respondent at that point of time filed E.A.No.3919 of 2000 in
the above Execution Petition u/s 151 of the Code of Civil Procedure, seeking to record him as an Obstructor in the proceedings. The case of the
second respondent is that he became a tenant in the suit property in January, 1999. He was inducted into the suit property by one Rukmani, has
said to be a Power Tenant Agent of the first respondent. The second respondent has alleged that there is a rental agreement in his favour. The
petitioner herein filed a counter opposing the said application. The said petition is also barred by the provisions of Order 21 of the CPC as in
accordance with Rule 102 of the said order a transferee pendente lite of the suit property from the judgment debtor is not entitled to be heard as
an Obstructor. The Court below by the impugned order dated 31.01.2001, allowed E.A.No.3919 of 2000. Against the said order, the petitioner
preferred the present revision.
Heard Mr. R. Srinivas for the petitioner and Mr. M.L. Ramesh for the second respondent.
Learned counsel for the petitioner after taking me through the relevant provisions, namely Order 21 Rule 97, Rule 102 of the CPC would
contend that the court below failed to note that E.A.No.3919 of 2000 was barred by Order 21 Rule 102 of the Code of Civil Procedure. He
further contended that the Executing Court failed to see that the second respondent herein was claiming to be only a tenant (transferee) from the
first respondent herein and that the person who had become the tenant during the pendency of a suit, namely, O.S.No.7414 of 1996 could not be
heard at all in execution proceedings as an Obstructor.
On the other hand, learned counsel for the second respondent supporting the order under challenge would contend that, inasmuch as he was in
possession of the suit property at the time of decree, rightly recognised him as an obstructor, accordingly prayed for dismissal of the revision.
I have carefully considered the rival submissions.
It is seen that the Civil Suit in O.S.No.7414 of 1996 filed by the petitioner was decreed on 02.08.1999. Based on the said decree, he filed
E.P.No.151 of 2000 for execution of the same. The judgment debtor - second respondent herein on receipt of notice did not participate in the
execution proceedings, therefore he was set ex-parte on 08.07.2000. Accordingly, the Court below passed an order for delivery of possession in
terms of the decree. When the Court bailiff went to the premises in question for handing over possession, the same was objected to by the second
respondent herein stating that he is a statutory tenant. In order to substantiate his claim, E.A.No.3919 of 2000 was filed before the Court below to
recognise him as an Obstructor.
Now, I shall consider the relevant provisions applicable to the issue in question. Order 21 Rule 97 (1) and (2) reads as under.
Resistance or obstruction to possession of immovable property.-
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 of obstruction.
Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provision
herein contained.
Order 21 Rule 102 states thus,
Rules not applicable to transferee pendente lite.- Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a
decree for the possession of immovable property by a person to whom the judgment debtor has transferred the property after the institution of the
suit in which the decree was passed or to the dispossession of any person.
Mr. R. Srinivas, learned counsel for the petitioner would contend that, in the light of the fact that the Obstructor being a tenant is also bound by
the decree in O.S.No.7414 of 1996 dated 02.08.1999, his claim need not be considered or adjudicated by the Executing Court. For that, he very
much relied on Rule 102, which says that procedure prescribed under Rule 98 and 100 shall apply to resistance or obstruction in execution of a
decree for the possession of immovable property by a person to whom the judgment debtor has transferred the property after the institution of the
suit in which the decree was passed. In this regard, it is relevant to note that the petitioner herein - plaintiff secured a decree against the first
respondent herein - judgment debtor in O.S.No.7414 of 1996 on 02.08.1999. Since the first respondent herein - Judgment Debtor was out of the
country, he executed a Power in favour of Rukmani Ammal on 17.01.1998 giving full power to deal with the property in question. It is the case of
the Obstructor that from the said Rukmani Ammal he entered into an agreement of tenancy on 18.01.1999 and occupied the house. In other
words, even prior to the date of the decree dated 02.08.1999, the second respondent - Obstructor entered into an agreement and was in
possession of the suit property as a tenant on 18.01.1999 with the power of attorney holder Rukmani Ammal. In such a circumstance, in the light
of the language used in Sub-clause (1) of Rule 97, I am of the view that the second respondent herein is justified in filing E.A.No.3919 of 2000
before the Executing Court to establish that he is an obstructor. This aspect has been rightly considered by the Court below and allowed the said
application.
Learned counsel for the petitioner very much relied on the decision of M.Srinivasan,J., (as he then was) in the case of Annapoorni vs. Janaki
reported in 1995 (1) LW 141. The said judgment concentrates only on the power of this Court u/s 115 of the CPC and Article 227 of the
Constitution of India. He also relied on the decision of S.S. Subramani,J., in the case of Arthur Theodore James (deceased) and 2 others vs. Mrs.
Hanna Rosaline and 4 others reported in 1999 (1) L.W. 222. In the said decision the learned Judge has observed that,
..... The so-called lease in favour of Savarinathan was entered into pending suit for partition and, therefore, he is also bound by the decree.
He cannot have a better claim than the so-called lessor. If Savarinathan has put up any construction pending litigation, he is bound to remove the
same. Merely, because the decree does not provide for removal of the structure, the power of the executing Court and the decree will not become
inexecutable.
Learned counsel for the petitioner has also relied on the decision of the Apex Court in the case of N.S.S. Narayana Sarma and Others Vs.
Goldstone Exports (P) Ltd. and Others, . While considering Rule 97, their Lordships have held,
16........ The words ""all questions arising between the parties to a proceeding on an application under Rule 97"" would envelop only such
questions as would legally arise for determination between those parties. In other words, the Court is not obliged to determine a question merely
because of the resister raised it. The questions which the executing Court is obliged to determine under Rule 101, must possess two adjuncts. First
is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and
determination between the parties. e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question
raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer
made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during executing proceedings.
It is to be noted that, in the very same judgment their Lordships have further held,
...... In the adjudication process envisaged in Order 21 Rule 97 (2) of the Code, the execution Court can decide whether the question raised
by a resister or obstructor legally arises between the parties. An answer to the said question also would be result of the adjudication contemplated
in the sub-section.
It is clear that it is for the Executing Court to decide the question raised by the resister or obstructor. In our case, the claim made by the obstructor
had been considered by the Executing Court. In the light of the conclusion of the Supreme Court, the decision referred to in 1999 (1) L.W. 222
(cited supra) is not helpful to the petitioner''s case.
It is useful to refer the judgment of the Supreme Court reported in the case of Shreenath and Another Vs. Rajesh and Others, . This judgment
was referred to by the Executing Court in support of its conclusion. After considering Sub-clause (1) of Rule 97, their Lordships have held that,
... all disputes relating to the property made under Rules 97 and 99 is to be adjudicated under Rule 101, while under unamended provision
under sub-clause (2) of Rule 97, the executing Court issues summons to any such person obstructing possession over the decretal property. After
investigation under Rule 98, the Court puts back a decree-holder in possession where the Court finds obstruction was occasioned without any just
cause, while under Rule 99 where obstruction was by a person claiming in good faith to be in possession of the property on his own right, the
Court has to dismiss the decree-holder application. Thus even prior to 1976 right of any person claiming right on his own or as a tenant, not party
to the suit such person''s right has to be adjudicated under Rule 99 and he need not fall back to file a separate suit. By this, he is saved from a long
litigation. So a tenant or any person claiming a right in the property, on his own, if resists delivery of possession to the decree-holder the dispute
and his claim has to be decided after 1976 Amendment under Rule 97 read with Rule 101 and prior to the amendment under Rule 97 read with
Rule 99. However, under the old law, in case order is passed against the person resisting possession under Rule 97 read with Rule 99 then by
virtue of Rule 103, as it then was, he has to file a suit to establish his right. But now after the amendment one need not file suit even in such cases as
all disputes are to be settled by the Executing Court itself finally under Rule 101. .....
It is clear that even prior to 1976 and after the said amendment, the person claiming right as a tenant in respect of the property in question need not
file a separate suit and he is entitled to file an application in the Executing Court to prove his claim. As stated earlier, the second respondent herein
rightly filed an application and the same was considered by the Executing Court.
It is also relevant to refer the case of Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, , wherein their Lordships have
held that, the resistance and / or obstruction to possession of immovable property as contemplated by Order 21, Rule 97 CPC could have been
offered by any person. The words ""any person"" as contemplated by Order 21, Rule 97, sub-rule (1) are comprehensive enough to include apart
from judgment-debtor or anyone claiming through him even persons claiming independently and who would be, therefore, be total strangers to the
decree. In that case, the respondent one though seeking only reissuance of warrant for delivery of possession with aid of armed force, in substance
sought to bypass the previous resistance and obstruction offered by the appellant on the spot and their Lordships in such a circumstance have held,
Thus it was squarely covered by the sweep of Order 21, Rule 97, sub-rule (1) CPC. Once that happened the procedure laid down by sub-rule
(2) thereof had to be followed by the Executing Court. The Court had to proceed to adjudicate upon the application in accordance with the
subsequent provisions contained in the said order.
In the case of Bhagwat Narayan Dwivedi Vs. Kasturi, , the Division Bench has held that as soon as the third person resists or obstructs
delivery of possession, the Executing Court must stay its hands, until the decree holder either satisfies it that such a person is bound by the decree,
or makes an application under Order 21, Rule 97, complying resistance or obstruction. The third person can give intimation in writing to the
Execution Court of his intention to resist or obstruct after or even before a warrant of possession is issued.
In the case of Bhanwar Lal Vs. Satyanarain and another, , the following conclusion of their Lordships is relevant.
.... A reading of Order 21 Rule 97 CPC clearly envisages that ""any person"" even including the judgment debtor irrespective whether he claim
derivative title from the judgment debtor or set up his own right title or interest de horse the judgment debtor and he resists execution of a decree,
then the court in addition to the power under Rule 35 (3) has been empowered to conduct an enquiry whether the obstruction by that person in
obtaining possession of immovable property was legal or not.
In the case of Shreenath vs. Rajesh reported in 1998 AIR S.C.W. 1619, the Supreme Court has held that the third party in possession of a
property claiming independent right as a tenant not a party to the decree for possession of immovable property under execution, could resist such
decree by seeking adjudication of his objections under Order 21 Rule 97.
In the light of the legal position as well as the procedure prescribed in the Code and also of the fact that the second respondent - Obstructor
became a tenant even prior to the date of the decree, I hold that his application in E.A.No.3919 of 2000 to declare him as an Obstructor is valid
and the Executing Court is fully justified in adjudicating the matter. Accordingly, I do not find any error or infirmity in the order impugned.
Consequently, the civil revision petition fails and the same is dismissed. No costs.
In view of the dismissal of the main revision, connected CMP., is also dismissed.