Santoba and Others vs Madhavarao and Others

The facts of the case have been set out in detail in the order of reference of the Division Bench. A final decree was obtained by the Respondent on 9th Mehr 1348 F. In execution of the decree, the decree-holder applied to the court for delivery of possession of the property. The judgment-debtor objected to the delivery of possession on 2nd Amardad 1349 P. Thereupon the decree-holder filed an application under Order 21, Rule 97, Code of Civil Procedure, praying that the obstruction by the third parties (the Petitioners) be removed and possession be given to him. This application was dismissed for default on 26th Mehr 1352 F. After this the decree-holder filed an application praying for restoration of the petition which was dismissed for default. This petition again was dismissed on 30th Aban 1352 F. Against this order of dismissal, the decree-holder appealed to the appellate court and the appeal was dismissed on 9th Shehrewar 1353 F. After these proceedings were over, on 2nd Dai 1354 F. the decree-holder filed another application praying for removal of obstruction purporting to be under Order 21, Rule 97, CPC The present Petitioners raised the objection that such an application would not lie. The executing court disallowed the objection of the Petitioners and held that the petition was maintainable. Against this order of the lower court the third party (the present Petitioners) filed a revision petition to this Court and the case came up before the Division Bench and the Division Bench after hearing the arguments thought it advisable to refer the case to a fuller Bench in view of some conflict of opinion among the various High Courts.

The short point therefore that the Full Bench has to consider is as to whether an application for removal of obstruction under Order 21, Rule 97 has been dismissed for default, the decree-holder is competent Jo file another application renewing his application and praying that the obstruction toe removed. In so far as this point is concerned, it is clear that Order 21, Rule 97, Code of Civil Procedure, would come into operation only when an obstruction is raised by the Judgment-debtor or any third party to the delivery of possession when the decree-holder goes to take possession of the property. Therefore, where there was no application for delivery of possession as contemplated by Order 21, Rule 35 it could not be said that there was any obstruction to possession which had to be removed and therefore there could be no application as such for removal Of obstruction. It may also be mentioned hero that under Article 167 of the Limitation Act an application for removal of obstruction to the delivery of possession has to be made within 30 days of the actual obstruction, for the words in the 3rd Column are "the date of the resistance or obstruction." Therefore, the law does not contemplate the filing of an application under Order 21, Rule 97 at any time even where there has been no attempt to take delivery of possession and there has been an obstruction.

We are therefore, of opinion that the view taken by the lower court is incorrect, that the application filed by the decree-holder on 2nd Dai. 1354 F. is premature and should be rejected. This revision petition is allowed. In view of the particular circumstances of this case we direct that each party bear his own costs.