S. Rajendran vs Arulmighu Kapaleeswarar Devasthnam and another

This is an atrocious case and one of the several unfortunate instances where the observation of the Privy Council and the Supreme Court, that in

India the troubles for the decree- holder commence after the decree would aptly apply.

The first respondent herein filed suit in O.S.No.8137 of 1978 against the second respondent herein and obtained an ex parte decree on

7.1.1980 The decree was put into execution in E. P. No. 635 of 1984. The revision petitioner obstructed execution contending that he was in

occupation of the property under the authority of one Venkataramana. who according to him. was the successful bidder for lease of the suit

property. The first respondent/decree-holder filed EA.No.4149 of 1984 in E.P.No, 635 of 1984 for removal of obstruction against him. This E.A.

was dismissed as the main execution petition itself was hot pressed. The decree-holder filed E.P.No.3400 of 1989 against the second

respondent/judgment-debtor. The revision petitioner was impleaded in the above E.P. He contended that the earlier execution petition, viz. E.P.

No. 635 of 1984 having been dismissed as also the obstruction petition E.A. No. 4149 of 1984 this E.P. had also to be dismissed. The Executing

Court by order dated 22.12.1994 rejected the obstruction raised by the revision petitioner and directed delivery before 27.2.1995. As against this

order the present civil revision petition has been filed.

The learned Counsel for the revision petitioner submitted that the Executing Court had exceeded Its jurisdiction in ordering execution against a

person not a party to the E.P. and that it had gone beyond the decree. The learned Counsel further submitted that the Executing Court erred in

ignoring the dismissed of the earlier application for removal of obstruction in E.A.No. 4149 of 1984 in E.P. No . 635 of 1984 . In respect of the

very same subject matter, the order having become final and binding on the parties and no permission having been obtained to file fresh

proceedings, the learned Counsel wanted this Court to hold that the respondents had colluded together and the second respondent had remained

ex parte and there could be no order of delivery against the revision petition. The learned Counsel further submitted that there was negotiation

going on between the decree-holder and the judgment debtor for sale of the property to the judgment debtor after dispossessing the revision

petitioner. It was lastly contended by the learned Counsel that the proper remedy for the decree holder is to file a separate suit against the revision

petitioner.

Per contra, the learned Counsel for the first respondent/decree-holder submitted that the order of the lower Court cannot be taken exception to,

that there was no question of res judicata involved and that the revision petitioner had not produced any document to show his possession and his

own past possession from 1967 as claimed by him. The learned Counsel also relied on the following decisions in support of his contentions:

(1) R. Dakshinamoorthy Vs. Padmavathy Ammal, ; (2) Narayanaswami Reddi and others v. Veerappa Chettiar and another A.I.R 1949 Mad.

753; (3) Mohamed Abdul Kadar Syed Mohammed and Another Vs. Mohamed Thassin Mohammed Mustafa, ; (4) Duraisami Nadar Vs.

Sudalaimada Nadar and Others, ; (5) Lakkaraju Somunaidu Vs. Majji Gangamma and Others, ; (6) Maneklal Nathalal Jingar Vs. Ochhavlal

Chhaganlal and Another, ; (7) Bhanwar Lal Vs. Satyanarain and another,

The Executing Court analysed the documents in the case and the circumstances under which the revision petitioner set up his right to possession

and found that the revision petitioner had not produced any acceptable evidence in support of his right to be in possession and the capacity In

which he was in possession and rejected his case.

It is not disputed and it is supported by enough materials that the suit property was leased out to the second respondent /Judgment debtor in the

year 1966. In 1967 when the lease-hold right was auctioned, one Venkataramana became the successful bidder. But Venkataramana did not and

could not take possession. Thereafter, the suit came to be filed against the second respondent. An ex parte decree was passed on 7.1.1980

E.P.No.79 of 1981 was filed, but it was not pursued at the time of enquiry and it came to be closed. Thereafter E-P. No. 635 of 1984 was filed

and it was ordered but when the decree-holder went to the property to take possession the revision petitioner obstructed. This obstruction was

noted and thereafter an application for removal of obstruction was filed. However, the E.P. was withdrawn. In continuation of the said E.P. the

present E.P. was tiled in the year 1989. The revision petitioner was impleaded at his own instance in the present E.P. He contended that

Venkataramana was the successful bidder and he took possession and at his instance the revision petitioner was in possession and the present E.P.

cannot be executed against him. It was the case of the decree holder that the revision petitioner was a servant of the judgment debtor and that the

revision petitioner did not have any independent right to occupy the property. The Executing Court relied on Ex.A-1 which is a notice issued by the

Government to the decree-holder Devasthanam for acquiring the property subject matter of the proceedings by the Government. This was issued

in the year 1961. This showed that the judgment debtor was in possession of the property. There was also further material to show that in 1980

the judgment-debtor filed a writ petition in the High Court setting up a case of agreement between him and the decree-holder Devasthanam for sale

of the property to him. This writ petition was dismissed on 8.11.1990. Ex. A.4 is a letter from the judgment-debtor to the decree-holder telling the

latter to take steps to prevent encroachment of the property. These documents were taken into consideration by the Executing Court to hold that it

was only the judgment debtor who was in possession of the property. The Executing Court rejected the documents filed on the side of the revision

petitioner holding that they did not show as to the capacity in which the revision petitioner claimed to be in possession of the property. The

Executing Court also rejected the case of the revision petitioner that the earlier dismissal of the execution petition the withdrawal of the second

execution petition and the dismissal of the obstruction petition would operate as res judicata. In arriving at that conclusion the Court relied on the

judgment of this Court reported in Narayanaswami Reddi and others v. Veerappa Chettiar and another, AIR 1949 Mad 753 ultimately the lower

Court held that the revision petitioner had not substantiated his case his right to be in possession and the capacity in which he claimed the right and

ordered the execution petition.

The question is whether the Executing Court had exceeded its jurisdiction in ordering execution against a person not a party to the E, P. It has

been held in R. Dakshinamoorthy Vs. Padmavathy Ammal, that in a case where the obstructor himself seeks direction from Court for reception of

his objection memo and acquiesces participating in the enquiry it is not open to him to complain later on that the procedure adopted was wrong. In

the instant case the revision petitioner after being impleaded participated in the enquiry and let in oral and documentary evidence. It does not lie in

his mouth therefore to contend that the procedure adopted was wrong. It must be deemed that he had waived any objection though he could have

raised earlier as against the procedure adopted. The order of the Executing Court cannot therefore be found fault with on this score.

In Narayanaswami Reddi and others v. Veerappa Chettiar and another AIR 1949 Mad. 753 an application under Order 21, Rule 97 of the

CPC 1908 was filed one day beyond limitation end it was got dismissed as not pressed. It was held that the order was not an order against the

decree-holder within Rule 103 and that a fresh application under Rule 97 for same relief arising out of subsequent execution was not barred. The

position in the instant case is not any different. An order dismissing an application as not pressed is not an order under Rule 98 or Rule 99 of Order

21 against a decree-holder within the meaning of Order 21, Rule 103.

To the same effect is the judgment In Mohamed Abdul Kadar Syed Mohammed and Another Vs. Mohamed Thassin Mohammed Mustafa, .

That was a case of an auction purchaser and it was held that,

it was open to an auction purchaser to file any number of applications for delivery of property and the fact that one application under Order 21,

Rule 95 became infructuous or was dismissed owing to his failure to apply under Order 21, Rule 97, CPC within limitation for removal of the

obstruction caused by some persons, was not a bar to the maintainability of another application for delivery under Order 21, Rule 95, Civil

Procedure Code.

It cannot be held in the instant case that there was an investigation and adjudication by a Court when the earlier application was not pressed. Only

if there is an adjudication on merits in any later proceedings the decision would operate adversely to him."" Duraisami Nadar Vs. Sudalaimada

Nadar and Others, .

In Lakkaraju Somunaidu Vs. Majji Gangamma and Others, that

a disposal of a petition without an enquiry into the question involved does not fall under Rule 98 or 99 and a fresh application under Rule 97 is

not barred.''''

It has been held by a Division Bench of the Gujarat High Court in Maneklal Nathalal Jingar Vs. Ochhavlal Chhaganlal and Another, as follows:

The different rules of Order 21 being the procedure in execution of a decree and the issuance of a warrant under Order 21, Rule 35 is a step in

the entire procedure to help the decree- holder to obtain the fruits of his decree. He is entitled to say to the Court at any stage of the procedure

that he will not like to have its help any more. But this will not deprive him of his right to go to the Court again at any time during which the decree

is enforceable and it is implicit in this right that he can make an application under Order 21, Rule 97 every time he is resisted.

A resistance to delivery of possession is a mere intimation to the decree-holder that the resistor will not allow him to take possession. It is open to

the decree-holder not to join issue with him at that time and to allow the warrant to lapse. Since the making of the application under Order 21,

Rule 97 is not mandatory a resistance comes to an end with the abandonment by the decree-holder of his right to enforce the warrant for

possession by making an application under Order 21, Rule 97. That resistance cannot be said to be continued when a fresh obstruction is made to

delivery under a fresh warrant.

The resistance or obstruction mentioned in Article 129 of the Limitation Act refers to the resistance or obstruction complained of in the application

under Order 21, Rule 97. If therefore, the complaint is as to a second obstruction time will begin to run from the date of the second obstruction

and not from the date of the first obstruction.

Therefore, even if the first obstruction had been made by the same person in the same character as the second obstruction, in respect of an

application under Order 21, Rule 97 complaining of the second obstruction, time will begin to run from the date of the second and not of the first

obstruction.

In Bhanwar Lal Vs. Satyanarain and another, It has been held that

a person resisting delivery of possession must be bound by the decree for possession. In other words, the resistor must claim derivative title from

the judgment debtor. The Court gets power under Order 21, Rule 97 to remove such obstruction or resistance and direct its officer to put the

decree holder in possession of the immovable property after conducting enquiry under Rule 97.

The procedure to be followed has been provided in Rules 98 to 103.

A reading of Order 21, Rules 97, CPC clearly envisages that ""any person"" even including the judgment-debtor irrespective of whether he claims

derivative title from the judgment-debtor or set up his own right, title or interest de hors 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. Each occasion of obstruction or resistance furnishes cause of action to the decree

holder to make an application for removal of the obstruction or resistance by such person. There is no question of res judicata for filing the second

and third applications arising.

Having regard to this established legal position the Executing Court was perfectly justified in ordering delivery of possession against the revision

petitioner. Rightly it has found that the revision petitioner has not shown the capacity in which he claimed to be in possession. There are absolutely

no merits in the civil revision petition and the same is dismissed with costs of Rs.3,000 (Rupees three thousand only).

In parting it has to be mentioned that the first respondent/decree-holder is also to blame for the present predicament. A suit was filed in the

year 1978 for cause of action arising in 1967-68 an ex parte decree was obtained in the year 1980 it was put into execution in 1984. It was not

pursued again E.P. filed in 1989 and for several years the revision petitioner has been allowed to successfully stall the proceedings and keep the

decree-holder at bay. They should have been more diligent. It is solely because it is not personal but public property that the officials had been

looking the other way. They should have been much more responsible.