Syed Akbar vs A. Raheela Ismail and Another

G. Rajasuria, J.—Inveighing the order dated 28.9.2011 passed by the District Munsif, Court, Salem, in R.E.P. No. 379 of 2011 in O.S.

No. 673 of 2011, this civil revision petition is focused. A summation and summarisation of the relevant facts absolutely necessary and germane for

the disposal of this revision petition would run thus:

(i) The first respondent-Raheela Ismail filed the suit O.S. No. 673 of 2011 as against Rahman-the second respondent/judgment debtor for

obtaining delivery of possession and permanent injunction. Ultimately, the suit was decreed. Then REP No. 379 of 2011 was filed and delivery

was obtained.

(ii) It appears, during the pendency of the R.E.P. No. 379 of 2011, and without allegedly knowing about the pendency of the R.E.P., the revision

petitioner herein-Syed Akbar, son of Abdul Rahman, filed a separate suit O.S. No. 864 of 2011 before the District Munsif, Salem and obtained

injunction as against Rahila Ismail-the first respondent herein not to disturb his alleged peaceful possession and enjoyment of the same suit

property, which happened to be the subject matter of R.E.P. No. 379 of 2011.

(iii) While so, the said Rahila Ismail entered appearance in the suit filed by Syed Akbar and filed Vakalat and counter in the I.A. filed for interim

injunction.

(iv) Interim injunction was granted by the I Additional District Munsif, Salem. According to the revision petitioner, while the said injunction was in

force, the first respondent Rahila Ismail, without disclosing about the pendency of the REP, simply proceeded to execute the REP when he was

away from the suit property, temporarily, in connection with his son''s marriage in Bangalore.

(v) On 30.9.2011, when the revision petitioner returned back to the suit property, he found the suit property under the seal of the Court and on his

enquiry, he found that delivery was effected on 29.9.2011 and that it was recorded on 30.9.2011 itself hurriedly.

Challenging and impugning the said recording of the delivery as under;

Emergent petition, advance hearing petition & Police petition filed and allowed. Delivery by 30.9.2011.

this revision has been filed, airing the grievance that the suit O.S. No. 673 of 2011 itself was a collusive suit and the first respondent herein

obtained a collusive decree and got it executed at a lightening speed, so as to deprive the revision petitioner of his genuine right of ownership and

possession over the suit property. The revision petitioner was not a party in the O.S. No. 673 of 2011 as well as in R.E.P. No. 379 of 2011.

While resisting the suit filed by Syed Akbar O.S. No. 864 of 2011 as well as the injunction application filed by him, the first respondent did not

disclose about the decree obtained by her in O.S. No. 673 of 2011 as well as the pendency of the REP maliciously. As such, there was

suppression of material fact.

The learned counsel for the petitioner would submit that this is a case where the first respondent fraudulently and in a scheming manner chalked

out a plan and dispossessed the revision petitioner, warranting interference in revision.

Per contra, in a bid to make mincemeat of and torpedo and pulverise the arguments as put forth and set forth on the side of the revision

petitioner, the learned counsel for the first respondent piloted his arguments, which could pithily and precisely be set out thus:

(a) The revision petitioner projected himself as the son of Abdul Rahman, which is not correct. In fact, he happened to be the son of one Syed

Sardar, who was the first husband of Syed Akbar''s mother. Whereas, Rahila Ismail-the first respondent happened to be the daughter of his

mother''s second husband, namely, Rahman and it is the said Rahman, who purchased the suit property in the name of Rahila Ismail and only that

property she took delivery as per the above proceedings, which cannot be found fault with.

(b) The procedure adopted by the Executing Court was promptly in order, which cannot be looked askance at and no one can find fault with it.

(c) It is the revision petitioner, who wants to get undue benefit by finding fault with the procedure adopted by the Executing Court.

(d) The revision petitioner was not in possession of the suit property and he had no ownership also over it.

Accordingly, the learned counsel for the first respondent would pray for dismissal of the suit.

The point for consideration is as to whether the revision petitioner was justified in challenging the recording of the delivery and also airing his

grievance as against the procedure adopted by the Executing Court in passing orders in favour of the first respondent/plaintiff.

It appears, my learned predecessor directed the Principal District Judge, Salem, to enquire into the matter as to what happened in the E.E.P.

No. 379 of 2011. Whereupon the Principal District Judge, Salem, made enquiry and gathered particulars and submitted his report, vide

proceedings D. No. 1536 of 2012 dated 13.3.2012.

The whole kit and caboodle of facts as stood revealed from the records would run thus:

The Executing Court ordered delivery. The senior bailiff went to the spot for effecting delivery and then he returned the warrant seeking police aid

and for break opening the lock. Whereupon the E.P. was got advanced and necessary applications were filed for break open the lock as well as

for taking police aid, by the bailiff of the Court. Accordingly, execution was effected on 29.9.2011. Immediately, on the very next day delivery was

recorded.

As of now, I do not want to express adverse remark regarding the conduct of the Executing Court, because, only after further probe in the

litigation between the petitioner and the first respondent, the truth involved in the matter would be culled out conclusively. But, one thing I could

point out that speedily execution was effected and that too, after getting the E.P. Hearing date advanced.

I would hasten to add, while remarking so, that in appropriate cases and genuine cases such advancing of the E.P. and ordering delivery could

never be stated to be bad by itself. However, in cases where if it is done purely for the purpose of throttling the rival genuine claim of the

obstructer, who is in possession, then certainly that should be condemned in unmistakable terms.

Now then, indubitably and indisputably, unarguably and unassailably, the factual position is that delivery was effected and now, the revision

petitioner is not in possession of the suit property. His precise case is that he had been in possession and enjoyment of the suit property till the date

of effecting delivery and in such a case, he ought not have been dispossessed, while he was on his sojourn at Bangalore in connection with his

son''s marriage. These are all facts which he has to prove.

I would like to recollect and call up Order 21 Rule 97, 98, 99 of the Code of Civil Procedure.

Order 21 Rule 97 would apply when the obstructer comes to Court before delivery; order 21 Rule 99 would come into play after

dispossession of the alleged possessor of the building.

Here, admittedly the revision petitioner would state that he has been illegally dispossessed. In such a case, the appropriate course open for him

is to invoke Order 21 Rule 99 of CPC and seek for restitution if at all factually and legally he is entitled to claim such remedy.

A mere recording of such delivery should not come on his way and for that limited purpose alone, the order dated 28.9.2011 passed in R.E.P.

No. 379 of 2011 is being set aside and liberty is given to the revision petitioner herein to file necessary application under Order 21 Rule 99 of

CPC on or before 26.4.2012. Whereupon, after hearing both sides, untrammelled and uninfluenced by any of the observations made by this

Court, the Executing Court is at liberty to deal with the matter, as per law. The civil revision petition is disposed of accordingly. However, there is

no order as to costs. Consequently, connected miscellaneous petition is closed.