Sankaran and Others vs Pandyvel and Others

P.D. Dinakaran, J.—The appellants are the third parties to suit O.S. No. 769 of 1981 laid by the first respondent herein against the

respondents 2 to 8 for delivery of possession. It is not in dispute that the said suit laid by the first respondent was decreed. When the first

respondent sought to execute the decree in O.S. No. 769 of 1981, in E.P. No. 307 of 1992, the appellants herein obstructed the same under

Order 21 Rule 97 of the CPC on the ground that they have put up buildings in the said suit property, incidentally contending that the right of the

first respondent over the suit property had not been concluded in view of the pendency of S.A. No. 334 of 1988 on the file of this Court.

However, the learned Additional District Munsif, Madurai, taking note of the fact that the appellants herein have no right over the said property

dismissed the claim of the appellants herein by order dated 26.10.1998 in E.A. No. 707 of 1995, and the same was, on appeal, confirmed by the

learned Principal Subordinate Judge, Madurai, by decree and judgment dated 23.3.1999 in C.M.A. No. 66 of 1998. Hence, the present civil

miscellaneous second appeal. This appeal was admitted on the following substantial questions of law:

(i) Whether the learned Sub-Judge is wrong in law in proceeding to decide the matter finally when the lower Appellate Court is aware of the fact

that the entire proceeding is one under Order 21 Rule 97 of the CPC which mandates that the proceedings has to be tried as a regular suit and in a

summary manner?

(ii) Whether the learned Sub-Judge had erred in law in not remitting the matter to the executing Court for affording an opportunity to the parties,

particularly to the obstructors/ appellants to substantiate their independent rights claimed by them and thereby proceeding with the matter as a

regular suit?

It is now reported that the second appeal, viz., S.A. No. 334 of 1988 relied upon by the appellants was also dismissed by this Court by

judgment dated 10.7.2001. Therefore, the right claimed by the first respondent under the decree and judgment in O.S. No. 769 of 1981 has

become final. Under such circumstances, particularly when the appellants failed to establish their rights with regard to the properties while

obstructing the execution of the decree and judgment in O.S. No. 769 of 1981, the question of holding a full-fledged trial in the execution

proceedings does not arise.

It is settled law that adjudication mentioned under Order 21 Rule 97(2) of the CPC need not necessarily involve a detailed enquiry or collection

of evidence. On the other hand, in an application under Order 21 Rule 97 of the Code of Civil Procedure, the enquiry must be summary and the

proceedings must be disposed of expeditiously bearing in mind its scope and the limited question to be decided. Resultantly, since as the

appellants/ obstructers have not proved their right with respect to the suit property and the right claimed by the first respondent herein based on the

decree in O.S. No. 769 of 1981 has reached a finality by virtue of judgment dated 10.7.2001 in S.A. No. 334 of 1988, finding no reason to

interfere with the judgments of the Courts below, this appeal is dismissed answering the substantial questions of law negatively. No costs.

Consequently, C.M.P. Nos. 7213 and 18461 of 1999 are also dismissed.