Kerala High Court
Koyakutty Thangal vs Kavunni Raja
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 14TH DAY OF AUGUST 2014/23RD SRAVANA, 1936
Ex.FA.No. 6 of 2009 ( )
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E.A. NO.620/2008 IN E.P. NO.31/1999 IN OS. NO.18/1976 OF SUB COURT, MANJERI.
.......
APPELLANTS/PETITIONERS:
-----------------------------------------
1. KOYAKUTTY THANGAL,
S/O.HABEEB KOYA THANGAL.
2. ANEESA, D/O.PULIKKUNNEN ABU HAJI.
BOTH ARE RESIDING AT ADAKKAKUNDU, KALIKAVU AMSOM,
THRUKKUNNASSERY DESOM, NILAMBUR TALUK,
MALAPPURAM DISTRICT.
BY ADVS.SRI.T.C.SURESH MENON,
SRI.JIBU P THOMAS,
SRI.P.S.APPU,
SRI.A.R.NIMOD,
SRI.C.A.ANOOP.
RESPONDENTS/RESPONDENTS 2 TO 5, 8 TO 15, 17, 19 & 21 TO 51:
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1. KAVUNNI RAJA.
2. RADHA THAMPURATTY.
3. SAROJANI THAMPURATTY.
4. SUBADRA THAMPURATTY.
5. GOURI THAMPURATTY.
6. BHARATHI RAJA @ ANUJATHI THAMPURATTY.
7. DEVI THAMPURATTY.
8. AYIRANAZHI KOVILAKATHU VENUGOPALAN RAJA.
9. SATHIAKUMARAN RAJA.
10. SARADA THAMPURATTY.
11. SURENDRAN RAJA.
Ex.FA.No. 6 of 2009
12. SARASWATHY THAMPURATTY.
13. BHANUNNI RAJA.
14. KUNCHUKUTTY THAMPURATTY.
15. A.C.UNNIKKAVU RAJA.
16. A.C.DIVAKARAN RAJA.
17. A.C.VASUDEVAN RAJA.
18. A.C.THANKAMANI THAMPURATTY.
19. PRIYA VARMA.
20. A.C.KALIDASA RAJA,
RESPONDENTS 1 TO 20 ARE RESIDING AT
AYIRANAZHI KOVILAKAM, KADANNANNA,
VELLILA, MALAPPURAM.
21. P.K.CHERIYA THAMPATTY,
W/O.KRISHNA VARMA RAJA,
RESIDING AT USHA NIVAS, MELATTUR,
MALAPPURAM.
22. P.K. USHA, D/O.KRISHNA VARMA RAJA,
RESIDING AT USHA NIVAS, MELATTUR, MALAPPURAM.
23. PRIYA VARMA, D/O.A.C. KUNHUNNI RAJA,
RESIDING AT INFORT NEW ROAD,
P.O. THRIPPUNITHURA, ERNAKULAM.
24. P.SARATHCHANDRAN,
S/O.A.C. UDAYA VARMA RAJA,
RESIDING AT PALARIVATTOM, ERNAKULAM.
25. A.C.SANTHA THAMPURATTY,
D/O.AMMU THAMPURATTY, RESIDING AT
EGMORE HIGH ROAD, EGMORE, CHENNAI-600 008.
26. A.C. MOHANDAS, S/O.AMMU THAMPURATTY,
RESIDING AT CHERUKATTU KALAM,
P.O. ADAKKAKUNDU, KALIKAVU.
27. A.C. RAVEENDRAN RAJA, S/O.AMMU THAMPURATTY,
RESIDING AT EGMORE HIGH ROAD, EGMORE, CHENNAI-600 008.
28. A.C. CHANDRAN RAJA, S/O.AMMU THAMPURATTY,
RESIDING AT EGMORE HIGH ROAD, EGMORE, CHENNAI -600 008.
Ex.FA.No. 6 of 2009
*29. M.C. CHERIYAN, S/O.CHANDI. (DELETED)
*30. M.C. MATHEW, S/O.M.C.CHANDI. (DELETED)
31. M.C.THAMPI, S/O.M.C.CHANDI.
*32. ELIZABATH CHERIYAN, W/O.M.P.CHERIYAN. (DELETED)
33. MRS.M.C.GEORGE.
34. M.C.CHANDI @ BABU, S/O.LATE M.C.GEORGE.
35. MEERA POTHAN, WIDOW OF M.C.POTHAN C.JUNIOR.
36. SAJAY, S/O.LATE M.C.POTHAN C.JUNIOR.
37. SHANAS, D/O.LATE M.C.POTHAN C.JUNIOR.
38. SHARON, D/O.LATE M.C.POTHAN C.JUNIOR.
39. SHAREENA, D/O.LATE M.C.POTHAN C.JUNIOR.
40. MRS.SARASU POTHAN.
41. M.C.GEORGE.
42. MRS.OMANA SAMUVAL.
43. RAMANI KOSHI.
44. AMMINI IYPE.
45. AMMU MATHEW.
(RESPONDENTS 29 TO 45 ARE THE OWNERS OF
KERALA ESTATE, EZHUPATHEKKRA, MALAPPURAM).
* THE NAME OF RESPONDENTS 29, 30 AND 32 ARE DELETED FROM
THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER
ORDER DATED 29/05/2009 IN I.A. NO.896/2009.
BY SRI.T.KRISHNANUNNI, SENIOR ADVOCATE.
THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 14-08-2014, ALONG WITH EX.FA. NO.7 OF 2009 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
[CR]
B. KEMAL PASHA, J.
.........................................................................................
Ex.F.A. Nos.6, 7, 8, 9, 10, 11, 12, 13, 14, 15,
16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31,
32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 43, 44, 47, 48, 49,
50, 51, 52, 56, 57, 58, 59, 60, 61, 62, 64, 65, 66, 67, 68,
69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 83, 84, 85, 86, 87,
89, 90, 91, 92, 93, 94, 95, 96, 98 and 99 of 2009
.............................................................................................
Dated this the 14th day of August, 2014
J U D G M E N T
(1) Whether the judgment dated 25.03.2008 of this Court in W.P.(C)32951/2006 is per incurium against Order XXI Rules 97, 98, 101 and 105 of the Code of Civil Procedure 1908?
(2) Whether the said judgment is binding on these appellants?
Ex.F.A.No.6/2009 & con. cases -: 2 :- (3) Whether the procedure established by law through Order XXI Rules 97, 98, 101 and 105 of the Code of Civil Procedure 1908 has become a fait accompli before the court below, on account of the said judgment?
(4) Whether the decrees in O.S.No.16/1976, O.S.17/1976, and O.S.18/1976 of the court below are binding on the rights being claimed by these appellants over the properties in their possession, in respect of which obstructions were caused by them in effecting delivery in execution of those decrees?
(5) Has the court below bypassed or circumvented the procedure established by law through Order XXI Rules 97, 98, 101 and 105 of the Code of Civil Procedure 1908 by adopting the procedure by which the court below has passed the impugned common order?
(6) Has the court below adjudicated the claims for the removal of obstructions caused by these appellants, as per law?
These are the main questions arise for consideration in these appeals! Ex.F.A.No.6/2009 & con. cases -: 3 :-
2. These appeals have been preferred by the appellants challenging common order dated 09.01.2009 passed by the Subordinate Judge's Court, Manjeri in E.A. Nos.498/2008, 525/2008 to 535/2008 and 537/2008 to 551/2008 in E.P.115/1998 in O.S.No.16/1976, E.A.Nos.499/2008, 552/2008, to 574/2008 and 576/2008, 577/2008 to 590/2008 in E.P.30/1999 in O.S.17/1976, and E.A.Nos.500/2008, 737/2008, 591/2008 to 614/2008 and E.A.616/2008 to 629/2008 in E.P.31/1999 in O.S.18/1976 by treating it as an appealable order passed by the court below within the meaning of Order XXI Rule 103 of the Code of Civil Procedure 1908(hereinafter referred to as 'the Code' for short).
3. In 1960, the decree-holders filed a simple suit for injunction as O.S.No.292/1960 before the Munsiff's Court, Manjeri seeking a decree of perpetual injunction against trespass, as against the judgment-debtors as defendants. In 1961, the very same plaintiffs filed another similar suit as Ex.F.A.No.6/2009 & con. cases -: 4 :- O.S.342/1961 before the said court seeking the very same relief; but with regard to some other properties situated in the neighbourhood of the properties covered by O.S.292/1960. Again, in the year 1962, alleging further attempts of trespass, the very same plaintiffs filed O.S.177/1962 seeking the very same relief; of course as stated above, with regard to another piece of land situated in the neighbourhood of the properties covered by both the aforesaid earlier suits. Subsequently, in the year 1976, the plaintiffs amended all the said suits by incorporating the relief of recovery of possession and consequential reliefs, by complaining of acts of trespass by the defendants. On account of the amendment, the valuation of the suits exceeded the pecuniary jurisdiction of the Munsiff's Court and thereby the Munsiff's Court, Manjeri returned the plaints to be presented before the Subordinate Judge's Court, Manjeri.
4. The plaints were presented before the court below, Ex.F.A.No.6/2009 & con. cases -: 5 :- where O.S.292/1960 was renumbered as O.S.16/1976, O.S.177/1962 was renumbered as O.S.17/1976 and O.S.342/1961 was renumbered as O.S.18/1976. Ultimately, all the suits were decreed in favour of the plaintiffs with regard to the relief of recovery of possession. At the same time, the defendants were granted the relief for the value of improvements made by them in the properties. Appeals were preferred by the defendants as well as the plaintiffs.
5. The appeals preferred by the defendants as A.S.Nos.58/83, 76/83 and 77/83 were dismissed. At the same time, the appeals preferred by the plaintiffs as A.S.Nos.66/83, 67/83 and 68/83 were allowed by setting aside the relief of the value of improvements granted to the defendants. The appeals filed by the plaintiffs relating to the claim for past profits were disallowed. In short, the learned Single Judge of this Court has, in fact, denied the relief granted to the defendants by the trial court for value of improvements and confirmed the judgment and decree on Ex.F.A.No.6/2009 & con. cases -: 6 :- all other aspects. The defeated defendants did not stop there; but they preferred AFA Nos.54/97, 58/97 and 59/97, which were also ultimately dismissed. Therefore, the judgments and decrees passed by the court below stand modified through the judgment passed by the learned Single Judge and the same was further confirmed by a Division Bench of this Court in the AFAs.
6. The decree-holders filed EP 115/1998 in O.S.16/1976, EP 30/1999 in O.S.17/76, and EP 31/1999 in OS 18/1976. It seems that on 19.10.2006 the Amins deputed by the court below went to the properties pointed out by the decree-holders as decree schedule properties, and attempted to effect delivery. In the case of EP 115/1998, 14 persons obstructed the delivery. The Amin took down the names and addresses of most of those 14 persons and thereafter, he returned the warrant with a report disclosing the names of all those obstructors and addresses of most of such obstructors, before the court below. Through the said Ex.F.A.No.6/2009 & con. cases -: 7 :- report, the Amin requested for the assistance of either the Village Officer or the Taluk Surveyor for properly identifying the property to be delivered.
7. Similarly, in EP 30/1999, 24 persons obstructed the delivery. The Amin took down the names of those 24 persons and the addresses of most of them and thereafter, he returned the warrant with a report disclosing the names of those 24 persons, and the addresses of most of such obstructors, before the court below. In EP 31/1999, 39 persons obstructed the delivery. The Amin took down the names of all the 39 persons, and addresses of most of them and thereafter, he returned the warrant with a report disclosing the said names and addresses, before the court below.
8. It seems that on 18.11.2006 the decree-holders had filed three Execution Applications in the said three EPs., as E.A.508/2006 in EP 115/1998, E.A.509/2006 in EP 30/1999 and E.A.510/2006 in EP 31/1999. In E.A. 508/2006 Ex.F.A.No.6/2009 & con. cases -: 8 :- in EP 115/1998, along with the judgment-debtors, the obstructors were also arrayed as respondents 18 to 31. In E.A. 509/2006 in EP 30/1999, along with the judgment- debtors, the obstructors were arrayed as respondents 18 to
42. In E.A. 510/2006 in EP 31/1999, along with the judgment-debtors, the obstructors were arrayed as respondents 18 to 52. It seems that the said three EAs. remained as defective without being numbered, and the same were returned for curing the defects.
9. In the mean time, without disclosing anything regarding the E.As. 508/2006, 509/2006 and 510/2006, the decree-holders preferred E.A. 441/2006 in EP 115/1998 in O.S.16/1976, apparently one under Section 151 of the Code, seeking police protection for effecting delivery of the decree schedule properties. At the same time, in the said E.A. 441/2006, the obstructors were not made parties. The judgment-debtors also preferred E.A. 446/2006 in EP 115/1998 for getting an Advocate Commissioner deputed in Ex.F.A.No.6/2009 & con. cases -: 9 :- order to monitor the mode of delivery in execution by expressing the apprehension that there would be excess delivery in case of no such monitoring. In E.A. 446/2006 also, the obstructors were not made parties. The court below heard both the E.As. 441/2006 and 446/2006 together on 23.11.06 and disposed of the same through a common order on 25.11.06 whereby E.A. 441/2006 was dismissed after making a detailed discussion. E.A. 446/2006 was dismissed as unnecessary, in view of the dismissal of E.A. 441/2006.
10. Then the decree-holders cured the defects on E.As. 508, 509 and 510 of 2006 on 27.11.2006, re- presented it before the court below and got it numbered as the said E.As. It seems that the decree-holders were not vigilant to proceed with E.As. 508, 509 and 510 of 2006 filed under Order XXI Rule 97 of the Code. At the same time, the 20th decree-holder alone had chosen to approach this Court under Article 227 of the Constitution of India, through W.P. Ex.F.A.No.6/2009 & con. cases -: 10 :- (C) No.32981/2006 by challenging order dated 25.11.2006 passed by the court below on EA 441/2006.
11. It further seems that the 20th decree-holder, who approached this Court as petitioner in W.P.(C)32951/2006 by challenging order dated 25.11.2006 passed by the court below on E.A. 441/2006, has not chosen to make any of the obstructors as parties in the said W.P.(C). At the same time, the judgment-debtors were made parties in it. W.P.(C) 32951/2006 was disposed of by this Court on 25.03.2008. A perusal of the said judgment would reveal that the pendency of E.As. 508, 509 and 510 of 2006 before the court below was not disclosed before this Court. Certain directions deviating from the procedure contemplated under Order XXI Rules 97, 98, 101, 102, 103, and 105 of the Code are seen given in the judgment in W.P.(C)32951/2006. Through the said judgment, this Court after setting aside order dated 25.11.2006 passed by the court below on E.A. 441/2006, remitted the matter back to the court below, with some Ex.F.A.No.6/2009 & con. cases -: 11 :- directions as noted above.
12. On getting the matter remanded in a limited sense based on the directions given by this Court in the said judgment, it seems that the court below has acted in conformity with the directions given by this Court and passed the impugned order. Through impugned order, the court below has dismissed all the EAs. covered by the impugned order, and ordered delivery of the decree schedule property, as if it is an order under Order XXI Rule 35 CPC. The court below directed the Superintendent of Police, Malappuram to afford assistance including WPCs to the Amin for effecting delivery.
13. The assistance of Advocate Sri.Chandran Pillai (presently a Senior Counsel of this Court), who was the Commissioner appointed by the Division Bench of this Court in the matter earlier, was also ordered. Challenging the impugned order, the obstructors have come up in appeal.
14. Heard the learned Senior Counsel Ex.F.A.No.6/2009 & con. cases -: 12 :- Sri.R.D.Shenoy, the learned Senior Counsel Sri.S.V. Balakrishna Iyer, the learned counsel Sri.Rajesh R Komath, Sri.U.K. Devidas, Sri.Abdul Hakim, Sri.Suresh Menon etc. for the appellants, and the learned Senior Counsel Sri.Krishnanunni for the decree-holders.
15. The learned Senior Counsel Sri.R.D.Shenoy has made a scathing attack on the judgment passed by this Court in W.P.(C) 32951/06, which ultimately paved way for the passing of the impugned order by the court below. According to the learned Senior Counsel, the said judgment is per incurium against the statute, specifically, the provisions under Order XXI Rules 97, 98, 101, 102, 103, and 105 of the Code and therefore, it is not worthy for any purpose at all. It has been argued that the same could only be treated as a non est in the eye of law which could not have been relied on by the court below. It is further argued that the decree-holders have resorted to a short cut method by overlooking all the provisions of law and procedure by Ex.F.A.No.6/2009 & con. cases -: 13 :- bypassing and circumventing the due procedure contemplated under Order XXI Rules 97, 98, 101, 102, 103, and 105 of the Code and therefore, the impugned order apparently one based on the judgment in W.P.(C) 32951/2006 of this Court is also a non est. It has been further argued that as the judgment in W.P.(C) 32951/06 is a non est, all further proceedings based on it have also become ipso facto non est. It is argued that the judgment in W.P.(C) 32951/2006 has resulted in a special procedure adopted by the court below which is unknown to law, which has ultimately resulted in substantial miscarriage of justice.
16. The learned Senior Counsel Sri.S.V.Balakrishna Iyer has argued that this Court in W.P.(C) 32951/2006 ought not to have passed such a judgment by giving directions which are alien to the provisions contained in Order XXI Rules 97, 98, 101, 102, 103, and 105 of the Code. It is also argued that if at all the application filed by the decree- holders as E.A. 441/2006 is one filed under Section 151 of Ex.F.A.No.6/2009 & con. cases -: 14 :- the Code, when the names and addresses of the obstructors were available, the court below ought to have treated the said application as one under Order XXI Rule 97 and proceeded to adjudicate it within the meaning of Order XXI Rule 97(2) of the Code. It is further argued that a decree-holder, who was once obstructed from getting delivery, could not have resorted to any procedure other than the procedure contemplated under Order XXI Rules 97, 98, 101, 102, 103, and 105 of the Code.
17. The learned counsel Sri.Rajesh R. Komath, Abdul Hakim etc. have argued that the decrees, as such, are not executable as the property covered by the said decrees are not identifiable. According to them, by obtaining the decrees with regard to the properties which are allegedly situated in Kalikavu Village, the attempt of the decree-holders is to get the decrees executed and to snatch away the delivery of the properties belong to the appellants, which are situated in Kerala Estate Village, which was bifurcated from the Ex.F.A.No.6/2009 & con. cases -: 15 :- erstwhile Karuvarakundu Village. They have argued that Ext.C1(a) plan appended with the decree cannot be acted upon, as once the same was thrown away by a Division Bench of this Court by appointing another Commissioner who prepared another report and plan. They have further argued that the decree schedule property could only be the property covered by Ext.A1 based on which the decree- holders traced their title. The argument is that unless and until the property covered by Ext.A1 is identified, delivery cannot be ordered.
18. Per contra, the learned Senior Counsel Sri.Krishnanunni appearing for the decree-holders has argued that in all cases wherein there is an obstruction, all the lengthy procedures contemplated under Order XXI Rules 97, 98, 101, 102, 103, and 105 of the Code are not required to be adopted, and that such procedure is required only in cases wherein such questions arise for consideration between the parties to the proceedings which are relevant to Ex.F.A.No.6/2009 & con. cases -: 16 :- the adjudication of such application. It has been argued that the obstructors have deliberately made it to appear that the properties, which they alleged to have reduced into their possession are situated in Kerala Estate Village, whereas the said properties are also part of the decree schedule properties situated in Kalikavu Village. It is further argued that the decree-holders are not attempting to get the decree executed with regard to any piece of land situated outside Kalikavu Village and therefore, the obstructors who claim that they are in possession of properties coming within the Kerala Estate Village, cannot obstruct the execution of the decrees. The learned Senior Counsel for the decree-holders has fully supported the findings entered by this Court in the judgment in W.P.(C) 32951/06 as well as by the court below in the impugned order, by stating that there is nothing wrong in adopting a special procedure in order to achieve substantial justice. It is also argued that the direction passed by this Court to have the publication of notice, is not in any Ex.F.A.No.6/2009 & con. cases -: 17 :- way alien to the established procedure, when some of the appellants who did not obstruct the delivery on 19.10.2006 also could get an opportunity to forward their claims. It has been further argued that in cases wherein prima facie nothing is there to be adjudicated, and when there is no prima facie satisfaction that such questions relevant to be adjudicated in the proceedings arise for consideration, any adjudication is not warranted. It has also been argued that any interference with the impugned order will result in a further delay of at least 20 years more in these cases wherein the decree-holders, who have been anxiously waiting for the last several decades from 1960, for enjoying the fruits of the decrees.
19. The first question to be considered is whether at any stretch of imagination, the procedure contemplated under the provisions of Order XXI Rules 97, 98, 101, 102, 103, and 105 of the Code can be given a go by without any adjudication, and merely on a prima facie satisfaction that Ex.F.A.No.6/2009 & con. cases -: 18 :- such questions do not arise or such questions are not relevant for any adjudication. The question to be considered along with it is whether the procedure contemplated under Order XXI Rule 35 denotes a different procedure than what is contemplated under Order XXI Rules 97, 98, 101, 102, 103, and 105 of the Code.
20. Order XXI Rule 97 reads:
"97. Resistance or obstruction to possession of immovable property-
(1) 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 or obstruction. (2) Where any application is made under sub-rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions herein Ex.F.A.No.6/2009 & con. cases -: 19 :- contained."
21. Order XXI Rule 97(2) says that where any application is made under Rule 1, the Court shall proceed to adjudicate upon it in accordance with the provisions therein contained. The next provision to be looked into is Order XXI Rule 101 which reads:
"101. Question to be determined- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
Ex.F.A.No.6/2009 & con. cases -: 20 :-
22. The next provision of law to be considered is the procedure contemplated under Order XXI Rule 105 which reads:
"105. Hearing of application-
(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.
(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.
(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.
Explanation.--An application referred to in sub-rule (1) includes a claim or objection made under rule 58."
Ex.F.A.No.6/2009 & con. cases -: 21 :-
23. Order XXI Rule 98 deals with the determination of the questions referred to in Rule 101, after an adjudication. Order XXI Rule 98 reads:
"98. Orders after adjudication (1) Upon the determination of the questions referred to in rule 101, the court shall, in accordance with such determination and subject to the provisions of sub-rule (2),-
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit, (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the Ex.F.A.No.6/2009 & con. cases -: 22 :- pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days."
24. Order XXI Rule 102 reads:
"102. 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 such person .
Explanation.-In this rule, "transfer"
includes a transfer by operation of law." Ex.F.A.No.6/2009 & con. cases -: 23 :-
25. The learned Senior Counsel Sri.Krishnanuuni while supporting the impugned order as well as the judgment passed by this Court in W.P.(C) 32951/06 has canvassed an argument that when there is resistance by a person bound by the decree, he could, in fact, be thrown out with the aid of Order XXI Rule 35 of the Code itself. Order XXI Rule 35 is extracted below:
"35. Decree for immovable property -
(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by Ex.F.A.No.6/2009 & con. cases -: 24 :- beat of drum, or other customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-
holder in possession."
26. The learned Senior Counsel Sri.R.D.Shenoy and Sri.S.V.Balakrishna Iyer have argued that even in cases of such an obstruction or resistance by a person bound by the decree, it cannot be said that he could not get his rights, if any, adjudicated within the meaning of Order XXI Rule 97 (1). On construing the provisions reproduced above, it Ex.F.A.No.6/2009 & con. cases -: 25 :- seems that Order XXI Rule 35(1) reveals that the said provisions can have an application only in cases wherein the resistance is from a person bound by the decree. The question to be looked into is, even in such cases, can the execution court simply order removal of the said obstruction or resistance with police aid under Order XXI Rule 35(1) without having recourse to the provisions contained in Order XXI Rules 97, 98, 101, 102, 103, and 105 of the Code, even when such a person is forwarding some other independent rights of his own or just cause to resist or obstruct the delivery? Order XXI Rule 97(1) deals with resistance or obstruction by "any person". At any stretch of imagination, it cannot be said that the said terms "any person" used under Order XXI Rule 97(1) does not include even a person who is bound by the decree. Even when a person who is bound by the decree is obstructing the execution of the decree, and makes an application within the meaning of Order XXI Rule 97(1), the same has to be adjudicated within the meaning of Ex.F.A.No.6/2009 & con. cases -: 26 :- Order XXI Rule 97(2) of the Code. Resistance or obstruction by a person, who is bound by the decree is not at all an exception to either Order XXI Rule 97(1) or 97(2).
27. The next question to be decided is as to what are the rights to be adjudicated within the meaning of Order XXI Rule 101 of the Code. It shows that "all questions(including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97...........and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit........." what is discernible is that not only all questions arising between the parties to a proceeding on an application under Order XXI Rule 97, but also all questions including questions relating to right, title or interest in the property, are also questions relevant for adjudication within the meaning of Order XXI Rule 101 of the Code. Therefore, the scope of questions that can be decided under Order XXI Ex.F.A.No.6/2009 & con. cases -: 27 :- Rule 101 of the Code is very wide.
28. Then what is the meaning of 'right' used under Order XXI Rule 101? 'Rights' are always concerned with interest. 'Right' can be defined as interest protected by rules of right, either moral or legal rules. At the same time, right and interest are not identical. Interests are things to a living being's advantage. We can say that a man has interest, in his property, in his reputation, in his freedom etc. When he has the right to protect such interests, the said interest become the subject of those rights. When he has an interest in property, it is his advantage and he has a right to protect it, which implies that others ought not to have taken it away from him. There are many interests exist defacto and not de jure, the violation of which is not wrong, the respect for which is not a duty, and such interests cannot receive any legal recognition or protection. If it is de jure, the position is the converse. Every legal right has a title, that is to say, certain facts or events by reason of which the Ex.F.A.No.6/2009 & con. cases -: 28 :- right has become vested in its owner. As far as the terms "right, title or interest in the property" as contained under Order XXI Rule 101 are concerned, it seems that the title or interest in the property are subjects of the right of a person.
29. When an obstructor comes up with a claim for getting any of his rights in the property adjudicated, his claim cannot be thrown out without an adjudication by merely stating that such a right is not relevant to be adjudicated. The learned Senior Counsel Sri.Krishnanunni relies on the decision in Silverline Forum Pvt. Ltd. v. Rajiv Trust and another[AIR 1998 SC 1754] to canvass his argument that in all cases wherein resistance or obstruction arises, there need not be an adjudication. On going through the facts of the said case, it cannot be said that the ratio from that decision can apply to the facts and circumstances of these cases. In that case, a decree in question was passed against a tenant. There is a provision in the concerned enactment relating to the tenancy in that Ex.F.A.No.6/2009 & con. cases -: 29 :- particular case that the tenant could sublet; of course, by informing the matter to the landlord. In that particular case, the tenant committed subletting even without the knowledge and consent of the landlord. Thereafter, the sub-tenant, committed subletting again to another sub-tenant, who was the first appellant therein. When delivery was attempted, the said second sub-tenant forwarded an obstruction. He had specifically conceded in his application that he was the 2nd subtenant inducted without the knowledge and consent of the original landlord. It was in that scenario the Apex Court held that in such a case a rowing enquiry was not contemplated because of the specific admission by the said appellant. In paragraphs 12 and 13 of the decision noted supra, it was held:
"It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the Ex.F.A.No.6/2009 & con. cases -: 30 :- adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary."
30. In Silverline Forum Pvt. Ltd. (Supra), the Apex Court held that an adjudication can be made on the basis of admitted facts or even on the averments made by the resistor. It seems that it cannot be treated as a new phenomenon or new principle enunciated by the Apex Court. Even under Order XXI Rule 6 of the Code, such a principle can be found. Even in a suit, the court is empowered to pass a judgment and decree based on the apparent admission, if any, made by the defendant, without any Ex.F.A.No.6/2009 & con. cases -: 31 :- further adjudication. In an adjudication within the meaning of Order XX1 Rule 97(2) also, the question involved in it can be determined and an order can be passed on the basis of the admitted facts. Such an order passed on the basis of the admitted facts, will not take it out of the purview of an adjudication. On a close scrutiny of the decision noted supra, this Court is of the view that the ratio in that decision cannot be pressed into service as far as the facts and circumstances of these cases are concerned.
31. The learned Senior Counsel Sri.R.D.Shenoy has invited the attention of this Court to almost all the portions of the judgment in W.P.(C) 32951/2006. It seems that any of the parties to the said W.P.(C)32951/2006 has not brought the fact regarding the pendency of E.As. 508, 509 and 510 of 2006 in the E.Ps. before the court below, to the notice of this Court. On a perusal of the judgment, this Court is of the view that, had it been made known to this Court while dealing with the said W.P.(C), definitely this Court would Ex.F.A.No.6/2009 & con. cases -: 32 :- have taken its hands to away by paving way for an adjudication of the matters contained in E.As. 508, 509 and 510 of 2006. May be because of that, the 20th decree- holder, who alone rushed to this Court even without impleading any of the obstructors, has not cared to disclose the pendency of E.As. 508, 509 and 510 of 2006, before this Court. It cannot be said that the said petitioner was unaware of the pendecny of the said E.As., as he was also a party to it. The learned Senior Counsel for the appellants have pointed out that the procedure prescribed by this Court in the said judgment relating to the adjudication of the questions relating to the obstruction, are beyond the scope of Order XXI Rules 97, 98, 101, 102, 103, and 105 of the Code. Amins appeared at the properties in the possession of these appellants for effecting the delivery of the decree scheduled properties, were obstructed. The names of all the obstructors and the addresses of most of them were furnished to the court below by those Amins through their Ex.F.A.No.6/2009 & con. cases -: 33 :- reports. Thereafter, without having recourse to the provisions of Order XXI Rule 97(2) of the Code, the decree- holders had chosen to file E.A.441/2006 for the removal of obstructions through police aid, and for the issuance of fresh warrants for delivery.
32. Such a procedure is not, in fact, contemplated under Order XXI Rule 97 of the Code. Normally, it cannot be said that these obstructors were persons bound by the decrees. Even, in order to decide whether these persons are persons bound by the decrees also, an adjudication as contemplated under Order XXI Rule 97(2) is required. Without such an adjudication, one cannot safely decide whether such obstructors who are not parties to the decrees or even the E.Ps. are persons bound by the decree, within the meaning of Order XXI Rule 35(1) of the Code. Even if they are persons bound by the decree, in such cases also if they can show just cause, they can resist or obstruct the execution, withing the meaning of Order XXI Rule 98(2), and Ex.F.A.No.6/2009 & con. cases -: 34 :- to get their rights adjudicated. Even if a person who is bound by the decree is obstructing the delivery and in an adjudication under Order XXI Rule 98(2) if he proves that his cause is a just cause and he is entitled to protect his possession, his rights have to be adjudicated for the determination of the rights claimed by him. Under the provisions of Order XXI Rules 97, 98, 101, 102, 103, and 105 of the Code, the words carefully used by the legislature are 'determination', and 'determined'. Determination can only be through an adjudication and not otherwise. A determination is the result of an adjudication as contemplated by Order XXI Rule 101.
33. It seems from the judgment rendered by this Court in W.P.(C) 32951/2006 that, this Court had attempted to have an adjudication of the rights, of the obstructors even when they were not parties before this Court. In the judgment it was held:
"But the court below should have seen that Ex.F.A.No.6/2009 & con. cases -: 35 :- apart from claiming that they are having documents in their possession to show that the decree schedule properties are possessed by them they did not even show those documents to the Amin. It is also to be noticed in this context that Exts.P4 and P5 reports submitted by the Advocate Commissioner appointed by this Court in AFA will reveal that there is no scope for any confusion regarding the identity of the properties and particularly the village in which the decree schedule properties are situated. Going by those two reports the properties were in the possession of the judgment debtors themselves at that time i.e., in 2003."
This Court has gone further in finding that if at all anybody else has come into peaceful possession of the properties thereafter, their status in relation to the properties can only be that of a transferee pendente lite, who will also be bound by the decree. It has to be noted that the said findings were entered after noting down that Exts.P1, P2 and P3 reports of Ex.F.A.No.6/2009 & con. cases -: 36 :- the Amin had clearly revealed that certain named persons had raised obstructions raising disputes regarding the identity of the properties.
34. It seems that most of the obstructors are holding properties under the belief that those properties are not properties covered by the decrees and that they have independent rights over the properties being held by them. It may or may not be correct. But when there were such obstructions from their part, they have got an absolute right to get their rights adjudicated. They cannot be styled as persons bound by the decree without a proper adjudication to find out whether they are persons bound by the decree. Only after an adjudication, it can be concluded whether they are persons bound by the decrees or not. It seems that the judgment rendered by this Court in W.P.(C) 32951/06 has almost finalised the view that the judgment debtors were in possession of the properties till 2003 and all the obstructors were inducted by the judgment-debtors after 2003, without Ex.F.A.No.6/2009 & con. cases -: 37 :- an adjudication as contemplated by law. Such a finding could not have been endorsed. The further finding that such persons are transferees pendente lite also is made without any adjudication. At the same time, it seems that after making such observations in the form of findings on facts, it was held therein that a full-fledged adjudication is warranted in the circumstances of this case, "only if there was some convincing material to show that the obstructors have claims independent of the judgment debtors." No doubt, as argued by both the learned Senior Counsel for the appellants, consequent to the said judgment of this Court, the matter sent for consideration before the court below has become a fait accompli before the court below.
35. It seems that the court below on getting the matter remanded with the said observations and findings, have endorsed the views expressed in the said judgment through the impugned order. It seems that the court below did not labour much to enter the findings and it seems that Ex.F.A.No.6/2009 & con. cases -: 38 :- the court below has simply endorsed almost all the findings entered in the judgment in the W.P.(C) for non-suiting these appellants.
36. On going through Order XXI Rule 102 it is evident that nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of the immovable property by a person who is a transferee pendente lite from the judgment-debtor. As per the Explanation to it, the transfer includes a transfer by operation of law. Even if a judgment-debtor dies during the pendency of the execution proceedings, his legal representatives have to come on record, and by way of succession, if they are getting the rights of the judgment- debtors over such immovable property, it can also be styled as a transfer by operation of law. Therefore, the said class of transferees i.e., transferees pendente lite from the judgment-debtor, which includes such transferees by operation of law, is specifically excluded from the purview of Ex.F.A.No.6/2009 & con. cases -: 39 :- Rules 98 and 100. When going back to Order XXI Rule 98 (2), it is evident that the said provision contains, the terms "or by any transferee, where such transfer was made during the pendency of the suit or execution proceedings."
37. The transferee noted under Order XXI Rule 98(2) does not take in a transferee pendente lite from the judgment-debtor or a transferee pendente lite by operation of law from the judgment-debtor. The learned Senior Counsel Sri.Krishnanunni does not agree with the said proposition. According to him, the said provision does not exclude transferees pendente lite from the judgment-debtor as contemplated under Order XXI Rule 102 from the purview of Order XXI Rule 98(2) of the Code. According to him, the transferee contemplated under Order XXI Rule 98 (2) are transferees pendente lite from the judgment-debtor alone. It is hard to agree with the said proposition forwarded by the learned Senior Counsel. It clearly discernible from Order XXI Rule 98(2) read with Order XXI Ex.F.A.No.6/2009 & con. cases -: 40 :- Rule 102, a transferee pendente lite from the judgment- debtor is specifically excluded from the category of transferee contemplated under Order XXI Rule 98(2) of the Code.
38. As rightly pointed out by the learned Senior Counsel Sri.R.D.Shenoy and S.V.Balakrishna Iyer, it is evident that the court below was carried away by the untimely observations and findings of this Court in the judgment in the W.P.(C) 32951/06. When this Court has specifically found that all the obstructors were inducted after 2003 by the judgment-debtors, one cannot find fault with the court below, when the court below is administratively subordinate to this Court, in endorsing the findings entered by this Court as such. The learned counsel Sri. Rajesh R. Komath and Sri.Abdul Hakim have pointed out that this Court in the judgment in W.P.(C) 32951/06 had also finalized the questions regarding the identify of the properties, without any adjudication.
Ex.F.A.No.6/2009 & con. cases -: 41 :-
39. The appellants have a specific case that under the guise of the execution of the decrees, the properties being possessed by the appellants cannot be taken away through delivery when such a contention is there. Even without any adjudication, and behind their back, it seems that the finding has been entered to the effect that there is no scope for any confusion with regard to the identity of the property. Had these obstructors been made parties to the W.P.(C), they could have definitely pointed out that such a finding could not have been endorsed without them being given an opportunity of being heard in the matter, or without an opportunity of their claims being adjudicated. Even when the petitioner in the W.P.(C) was aware of the identify of the obstructors, he rushed to this Court by seeking police aid by challenging the order in E.A. 441/2006 without impleading the persons who were allegedly obstructing the execution of the decree. This Court, in fact, could not have passed the judgment when such identifiable obstructors were there, Ex.F.A.No.6/2009 & con. cases -: 42 :- without hearing them. It seems that through the judgment, even the principles of natural justice have been given a go by.
40. The learned Senior counsel for the appellants are relying on the decision in Khetrabasi Biswal Vs. Ajaya Kumar Baral and others [(2004) 1 SCC 317], wherein it was held in paragraph 6, "The procedural law as well as the substantive law both mandates that in the absence of a necessary party, the order passed is a nullity and does not have a binding effect."
The same is pressed into service for fortifying their argument that the judgment passed by this Court in W.P.(C) No.32981/2006 is a non est and the same is not binding on these appellants as they were not impleaded in the W.P.(C) and any opportunity of being heard was not extended to them.
41. The learned Senior counsel Sri.R.D.Shenoy has relied on the decision in Anwarbi Vs. Pramod D.A. Joshi Ex.F.A.No.6/2009 & con. cases -: 43 :- and others [2000 (10) SCC 405], which was rendered in an identical case. In that case, when the delivery of possession of the property in execution was obstructed by the appellant, the decree-holder again approached the execution court with an application under Order XXI Rule 35 of the Code for the removal of the obstruction/resistance for effecting delivery. The Apex court held that, in such case the decree- holder ought to have applied under Order XXI Rules 97 and 101 of the Code. In paragraph 4 of the decision in Anwarbi (supra), it was held:
"We, therefore make it clear that the
possession of the appellant cannot be
disturbed except in accordance with law; and that in view of the obstruction raised by her to the execution of the said decree, the rights of the obstructionist will have to be decided in appropriate proceedings, in accordance with law. Unless and until such proceedings terminate in favour of the decree-holder, the decree-holder cannot take possession and the appellant is entitled to retain possession." Ex.F.A.No.6/2009 & con. cases -: 44 :- Based on the decision in Anwarbi (supra), the learned Senior counsel argued that if at all the decree-holder is entitled to get the obstructions raised by these appellants removed in execution of the decrees, unless and until the resistance is legally removed, the persons who are in peaceable possession of the property at present are entitled to protect their possession and to retain the property with them.
42. Both the learned Senior counsel for the appellants relied on Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and another [(1997) 3 SCC 694] in which all the aspects relating to Order XXI Rules 97, 98, 99, 101, etc. were subjected to a threadbare examination by the Apex court. In the case relating to that decision, on 25.04.1991, the decree-holder obtained warrant for delivery of possession. The delivery attempted to be effected by the bailiff was resisted and obstructed by the appellant and his brothers named Sitaram Chaudhary and Jago Chaudhary Ex.F.A.No.6/2009 & con. cases -: 45 :- along with 20 - 25 persons. Then, instead of applying under Order XXI Rule 97 of the Code for the removal of the obstruction, the decree-holder filed an application on 06.05.1991 for a fresh warrant of delivery with the aid of armed force. At that stage, the appellant filed an application to stay the issuance of the warrant and to decide his objections. The decree-holder filed a rejoinder challenging the maintainability of the objections raised by the appellant. The execution court, without adjudicating upon the objections of the appellant on merits and without deciding whether the obstruction or resistance offered by him was legally justified, dismissed the application filed by the appellant. At that time, the execution court took the view that the course opened to the appellant was to wait till dispossession and then to file an application for his re- induction under Order XXI Rule 99 of the Code. It was in that background, the Apex court examined the scope of Order XXI Rules 35 and 97 and the other related provisions. Ex.F.A.No.6/2009 & con. cases -: 46 :-
43. In paragraph 5 of the decision in Brahmdeo Chaudhary(supra), the Apex court held:
"A mere look at the aforesaid provision shows that warrant for possession can be straightaway sought against persons occupying immovable property which is subject-matter of decree by the decree-holder provided such persons who are occupying the suit property are judgment-debtors or persons claiming through the former. We are concerned with the situation in which the appellant resisted the execution proceedings on the ground that he was a stranger to the decree and claimed an independent interest in the suit immovable property possession of which was decreed in favour of Respondent 1 decree-holder. The Nazir in his report dated 28-4-1991 has noted that the warrant for possession could not be executed on spot on account of the resistance and obstruction offered by the appellant, amongst others. Once that report was received by the Executing Court Respondent 1 decree-holder naturally became alive to the fact of such Ex.F.A.No.6/2009 & con. cases -: 47 :- resistance on spot by the appellant, amongst others. Thereafter when he moved the application on 6-5-1991 for issuance of fresh warrant for possession with the help of police force though the application purported to be under Order 21, Rule 35 it would strictly not fall within that provision as the decree-holder wanted to bypass the obstruction and resistance offered by a stranger to the decree, namely, the appellant who was not claiming any right, title or interest through the judgment- debtor. Whether his claim was right or wrong on merits is a different matter. But once such resistance was offered by him the proper procedure which was required to be followed by Respondent 1 decree-holder was the one contemplated by Order 21, Rule 97 CPC."
The Apex court took the view that in that particular case, the act of the decree-holder in applying for re-issuance of the delivery warrant and the aid of the police force for such delivery, was nothing but an attempt to bypass an adjudication under Order XXI Rule 98(2) of the Code.
44. In Brahmdeo Chaudhary (supra), the Apex court Ex.F.A.No.6/2009 & con. cases -: 48 :- held in paragraph 7:
"In an application under Order 21, Rule 97 moved by a decree-holder who complains about the resistance or obstruction offered by any person to the decree-holder in his attempt at obtaining delivery of the property and who wants such obstruction or resistance to be removed which otherwise is an impediment in his way, a lis arise between the decree-holder applicant, under Order 21 Rule 97 on the one hand and the obstructionist on the other hand, to whom service of summons as per Form No.40 in Appendix E CPC should have served. When such lis arises, it has to be adjudicated upon as enjoined by Order 21 Rule 97(2) CPC. The Apex court held that the procedure for adjudicating such a lis has to be culled out from the remaining succeeding Rules of Order 21."
45. The Apex court has evolved the principles emanate from Order XXI Rules 97, 98, 99 and 101 in Brahmdeo Chaudhary (supra) as follows:-
"(1) If a decree-holder, is resisted or Ex.F.A.No.6/2009 & con. cases -: 49 :- obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35 then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-
holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97 sub-rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication of it is found that the resistance or obstruction was occasioned without just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98 sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy Ex.F.A.No.6/2009 & con. cases -: 50 :- would be to prefer an appeal before the appropriate appellate court against such deemed decree.
(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order 21, Rule 99, CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order 21, Rule 98 sub-rule (1), CPC the Executing Court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property or if his application is found to be substanceless, it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other under Order 21, Rule 98 sub-rule (1) would be deemed to be a decree as laid down by Order 21, Rule Ex.F.A.No.6/2009 & con. cases -: 51 :- 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order 21, Rule 101."
46. It was further held therein that:
"In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order 21, Rule 97 sub-rule (1) and he cannot bypass such obstruction and insist on re-issuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal Ex.F.A.No.6/2009 & con. cases -: 52 :- of obstruction of purported strangers to the decree."
47. In paragraph 9 of Brahmdeo Chaudhary (supra), it was further held:
"The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the executing court, therefore, would fail also on the ground of non-compliance with basic Ex.F.A.No.6/2009 & con. cases -: 53 :- principles of natural justice. On the contrary the statutory scheme envisaged by Order 21, Rule 97 CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves."
48. The Apex court has held that in a case wherein the obstructionist, who claims any independent right, title and interest in the properties sought to be delivered, even when making the grievance that his rights were not adjudicated in Ex.F.A.No.6/2009 & con. cases -: 54 :- the suit as he was not made a party to the suit, if told off the gates without having recourse to the provisions of Order XXI Rule 97, that would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits. The result is that such obstructionist would be condemned totally unheard, and such an order of the executing court would fail also on the ground of non-compliance with the solemn principles of natural justice.
49. In paragraph 10 of Brahmdeo Chaudhary (supra), it was held:
"In this connection we may also profitably refer to a judgment of a Bench of three learned judges of this Court in the case of Bhanwar Lal v. Satyanarain. In that case the Bench consisting of K. Ramaswamy, S. C. Agrawal, and N. Venkatachala, JJ., had to consider a parallel fact situation. One Satyanarain had obstructed to the delivery of possession of the suit immovable property which was sought to Ex.F.A.No.6/2009 & con. cases -: 55 :- be obtained in execution by the appellant decree-holder. After such an obstruction was offered by Satyanarain the decree-holder moved an application under Order 21, Rule 35 for police assistance to remove obstruction caused by Satyanarain. The Executing Court directed the decree-holder to make an application under Order 21, Rule 97. This Court took the view that the very application under Order 21, Rule 35 sub-rule (3) for police assistance for removal of obstruction caused by Satyanarain had to be treated to be an application under Order 21, Rule 97 and such an application was maintainable and could not be said to be beyond limitation."
50. The Apex court has laid down the law that in such a case where the decree-holder comes up with an application for re-issuance of warrant for delivery with police aid under Order XXI Rule 35 of the Code, such an application should be construed and considered as an application for adjudication within the meaning of Order XXI Rule 97 of the Code. The Apex court has relied on the Ex.F.A.No.6/2009 & con. cases -: 56 :- decision in Bhanwar Lal Vs. Satyanarain and another [(1995) 1 SCC 6], wherein it was held in paragraphs 5 and 6 as follows:
"The procedure has been provided in Rules 98 to 103, we are not, at present, concerned with the question relating to the procedure to be followed and question to be determined under Order 21, Rules 98 to 102. A reading of Order 21, Rule 97 C.P.C. 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. The decree-holder gets right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done. Each occasion of obstruction or resistance Ex.F.A.No.6/2009 & con. cases -: 57 :- furnishes cause of action to the decree-holder to make an application for removal of the obstruction or resistance by such person.
When the appellant had made the application on 25-5-1979 against Satyanarain, in law it must be only the application made under Order 21, Rule 97(1) of C.P.C. The executing court, obviously, was in error in directing to make a fresh application. It is the duty of the executing court to consider the averments in the petition and consider the scope of the applicability of the relevant rule. On technical ground the executing court dismissed the second application on limitation and also the third application, on the ground of res judicata which the High Court has in the revisions now upheld. The Procedure is the handmaid of substantive justice but in this case it has ruled the roost."
After the detailed discussion of all the aspects, the Apex court took the view that the settled legal position would be that the application filed by the decree-holder for the re- issuance of warrant of delivery with police aid is in Ex.F.A.No.6/2009 & con. cases -: 58 :- substance an application under Order XXI Rule 97(2) read with Order XXI Rule 101 and Order XXI Rule 98 of the Code. The procedure laid down by Order XXI Rule 105 has to be applied for such an adjudication. It seems that the procedure contained in the 'complete code under Order XXI Rules 97, 98, 101 and 105 have not been mentioned or considered by this court in judgment dated 25.03.2008 W.P. (C)32951/2006. From all the discussions made above, it has come out that the argument of the appellants that the said judgment is per incurium against Order XXI Rules 97, 98, 101 and 105 of the Code, seems to be correct.
51. The learned Senior counsel Sri.Krishnanunni for the decree-holders has expressed an apprehension that if all such obstructions being caused at the time of delivery are being considered as one under Order XXI Rule 97(2) for the purpose of adjudication, it will be a never ending process and any person can come up with such resistance repeatedly claiming an adjudication, thereby the fruit of the Ex.F.A.No.6/2009 & con. cases -: 59 :- decree will be denied to the decree-holder. In answer to it, the learned Senior counsel appearing for the appellants have invited the attention of this Court to paragraph 12 of Brahmdeo Chaudhary (supra), wherein the Apex court held:
"This submission though prima facie looking attractive on a closer scrutiny does not remain well sustained. Even though the Nazir's report mentions the obstructions offered by Sitaram Chaudhary, Jago Chaudhary, Brahmdeo Chaudhary and others, only the appellant objected to the order passed by the executing court on respondent 1's application dated 6-5- 1991 for issuance of a fresh warrant for delivery of possession with the aid of police force. Only he put forward his written objections on 22-1-1996. Neither of his brothers, namely, Sitaram Chaudhary or Jago Chaudhary nor anyone else filed any objection to the said application for issuance of fresh warrant for possession with the police aid. Therefore, it must be held that the only objectionist to remain in the field claiming to be Ex.F.A.No.6/2009 & con. cases -: 60 :- a stranger having any right, title and interest in the suit property is the appellant and no one else. The others who might have resisted on spot on 28-4-1991 must be treated to have given up their obstructions and resistance subsequently and have gone out of picture. It must, therefore, be held that only the appellant is the sole surviving obstructionist whose claim regarding the alleged independent right, title and interest in the decretal property has to be adjudicated upon by the executing court under Order 21, Rule 97, sub-rule (2) CPC pursuant to the present order. The executing court shall not entertain objection or obstruction from any other party or person."
52. The Apex court has held that no other person could obstruct the delivery in that case, as an adjudication under Order XXI Rule 97 and the succeeding provisions are meant for the adjudication of the obstructions and resistance offered by the persons who obstructed and resisted the delivery at the attempt for delivery alone could be considered. The said findings entered by the Apex court is Ex.F.A.No.6/2009 & con. cases -: 61 :- squarely applicable to the facts and circumstances of these cases also. Rightly or wrongly, this Court had ordered publication of notice in the judgment in the W.P.(C). Such a notice was published. The appellants came up with their objections. In such case, it cannot be apprehended that there is room for any further adjudication of any disputes that may be raised by any persons other than these appellants. When the Apex court has concluded that in such a case the adjudication of the obstructions is confined to the obstructions caused by the persons who obstructed the delivery at the time when the delivery was attempted to be effected, there is no room for any such apprehension as forwarded by the learned Senior counsel for the decree- holders.
53. The learned Senior counsel for the appellants have relied on the decision in Shreenath and another Vs. Rajesh and others [(1998) 4 SCC 543], wherein it was held in paragraphs 10 and 11:
Ex.F.A.No.6/2009 & con. cases -: 62 :- "Order 21, Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through judgment-debtor or claiming independent right of his own including tenant not party to the suit or even a stranger. A decree-holder, in such case, may make an application to the Executing Court complaining such resistance, for delivery of possession of the property. Sub-clause (2) after 1976 substitution empowers the executing courts when such claim is made to proceed to adjudicate upon the applicant's claim in accordance with provisions contained hereinafter. This refers to Order 21, Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21, Rule 97 or Rule 99 shall be determined by the Court and not by a separate suit. By the amendment, one has not to go for a fresh suit but all matter pertaining to that property even if obstructed by a stranger is Ex.F.A.No.6/2009 & con. cases -: 63 :- adjudicated and finality given even in the executing proceedings. We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words 'any person' it includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other persons claiming right on their own including a stranger.
So, under Order 21, Rule 101 all disputes between the decree-holder and any such person is to be adjudicated by the executing court. A party is not thrown out to relegate itself to the long drawn out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree-holder and other person claiming title on their own right to get it adjudicated in the very execution proceedings. We find that Order 21, Rule 35 deals with cases of delivery of possession of an immovable property to the decree-holder by Ex.F.A.No.6/2009 & con. cases -: 64 :- delivery of actual physical possession and by removing any person in possession who is bound by a decree, while under Order 21 Rule 36 only symbolic possession is given where tenant is in actual possession. Order 21 Rule 97, as aforesaid, conceives of cases where delivery of possession to decree-holder or purchaser is resisted by any person. 'Any person', as aforesaid, is wide enough to include even a person not bound by a decree or claiming right in the property on his own including that of a tenant including stranger."
54. In Brahmdeo Chaudhary (supra), it was held that the statutory provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree-holder, and whose attempt at executing decree meets with a rough weather. Any attempt to have a short cut without having recourse to the said provisions are nothing but an attempt to circumvent or bypass the provisions of that complete code. The earlier sub-clause (2) of Order XXI Rule 97 was :
Ex.F.A.No.6/2009 & con. cases -: 65 :- "The court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same".
The same was substituted by the 1976 amendment with the present sub-clause (2) which reads:
"Where an application is made under sub-rule 1, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."
When the legislature has in its wisdom decided to get the matters adjudicated and not merely investigated, the adjudication has to be strictly done under that complete code which provides such an adjudication.
55. By relying on the decision in Noorduddin Vs. Dr. K.L. Anand (1995) 1 SCC 242], the Apex court held in Shreenath(Supra) that by necessary implication, the legislature relegated the parties to an adjudication of right, Ex.F.A.No.6/2009 & con. cases -: 66 :- title or interest in the immovable property under execution, and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution. When such a finality has been accorded by the legislature after taking away the right to file an independent suit which existed in the Code prior to the 1976 amendment, it is not the scheme of the amended Code to show the obstructionist the doors or gate off without a proper adjudication of all questions relating to their rights, title and interest within the meaning of Order XXI Rule 101 of the Code.
56. The learned Senior Counsel Sri.S.V.Balakrishna Iyer has invited the attention of this Court to the decision in Babu Raj Vs. Vasanthi Devi [2008 (4) KLT 761] rendered by a learned Single Judge of this Court, which was later approved by a Division Bench of this Court with slight Ex.F.A.No.6/2009 & con. cases -: 67 :- modifications. In Babu Raj (supra) it was held:
"Where the holder of a decree for possession of immovable property is resisted or obstructed in obtaining possession by any person on a ground which appears to necessitate an investigation, then the court cannot direct removal of such resistor or obstructor under Order XXI Rule 35 CPC and in such a contingency, the court will have to recourse to Order XXI Rule 97 CPC by proceeding to adjudicate upon an application filed by the decree-holder complaining of such resistance or obstruction".
Except in the use of the term "investigation", this Court is in full agreement with the said legal proposition.
57. In paragraph 11 of Babu Raj (supra), it was held:
"The nature of the order to be passed after adjudication in cases involving resistance or obstruction by strangers to the decree, is to be found in Rule 100 of Order XXI CPC and not in Rule 98 of Order XXI CPC."
This Court respectfully disagree with the said principle Ex.F.A.No.6/2009 & con. cases -: 68 :- enunciated by the learned Single Judge, as it does not reflect the correct interpretation of the legal provisions. A Division Bench of this Court in Unnikrishnan Vs. Kunhibeevi [2011 (1) KLT 508], held that "the provisions contained under Order XXI Rule 92 to 103 CPC lay down a complete code by themselves for resolving all disputes pertaining to the execution of a decree for possession of immovable property". It was held therein that:
"View expressed in Baburaj's case to take exception to the principles laid down in paragraphs 7, 8 and 11 in Brahmdeo Chaudhary's case, holding that R.98 of O.XXI of the Code covers only cases involving restrictions or obstructions by a judgment- debtor or by some other persons on behalf or by a transferee pendente lite, and that the procedure for adjudication of the applications under Rr.97 and 99 of O.XXI of the Code is under Rr.105 and 106 of that Order, is not correct."
58. The learned Senior Counsel Sri.S.V.Balakrishna Ex.F.A.No.6/2009 & con. cases -: 69 :- Iyer has pointed out that except for the aforesaid small portion in the decision in Babu Raj (supra), all the other observations and findings in the judgment hold the field correctly, and reiterate the correct legal position enunciated by the Apex court through the decisions discussed in the judgment. This Court is in full agreement with the said view expressed by the learned Senior Counsel.
59. The learned Senior counsel for the appellants have further argued that when the legislature has directed to act in a particular manner, and when the failure of the same results in consequences, a decision rendered by deviating from the said manner, will not operate as res judicata or estoppel. They have relied on the decision in Allahabad Development Authority Vs. Nasiruzzaman and others [(1996) 6 SCC 424], wherein it was held in paragraph 6:
"In view of the above ratio, it is seen that when the legislature has directed to act in a particular manner and the failure to act results in a consequence, the question is whether the Ex.F.A.No.6/2009 & con. cases -: 70 :- previous order operates as res judicata or estoppel as against the persons in dispute. When the previous decision was found to be erroneous on its face, this Court held in the above judgment that it does not operate as res judicata. We respectfully follow the ratio therein. The principle of estoppel or res judicata does not apply where to give effect to them would be to counter some statutory direction or prohibition. A statutory direction or prohibition cannot be overridden or defeated by a previous judgment between the parties. In view of the fact that land had already stood vested in the State free from all encumbrances, the question of divesting does not arise. After the vesting has taken place, the question of lapse of notification under Section 4(1) and the declaration under Section 6 would not arise. Considered from this perspective, original direction itself was erroneous and the later direction with regard to delivery of possession of the land, in consequence, was not valid in law."
60. In order to fortify his argument that the judgment Ex.F.A.No.6/2009 & con. cases -: 71 :- rendered by this Court in W.P.(C) No.3281/2006 is a non est in the eye of law, and the same has resulted in making all the subsequent proceedings based on it also as non est, the learned Senior counsel Sri.R.D.Shenoy has relied on the decision in Kshitish Chandra Bose Vs. Commissioner of Ranchi [AIR 1981 SC 707], wherein it was held in paragraph 6:
"In this view of the matter we are of the opinion that it is open to the appellant to assail even the first judgment of the High Court and if we hold that this judgment was legally erroneous then all the subsequent proceedings,namely, the order of remand, the order passed after remand, the appeal and the second judgment given by the High Court in appeal against the order of remand would become non est."
In paragraph 13, it was further held that when such an order was passed without jurisdiction, the logical result is that such an order of remand and all proceedings taken Ex.F.A.No.6/2009 & con. cases -: 72 :- thereafter based on such a remand order would become void ab initio.
61. In Satyadhyan Ghosal and others Vs. Smt. Deorajin Debi and another [AIR 1960 SC 941], it was held in paragraph 16:
"A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second sub- section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand."
62. In Jasraj Indersingh Vs. Hemraj Multanchand [AIR 1977 SC 1011], it was held:
Ex.F.A.No.6/2009 & con. cases -: 73 :- "In an appeal against the High Court's finding, the Supreme Court is not bound by what the High Court might have held in its remand order. It is true that a subordinate court is bound by the direction of the High Court. It is equally true that the same High Court, hearing the matter on a second occasion or any other court of co-ordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher Court when it comes up in appeal before it. This is so because the remand order by the High Court is a finding in an intermediate stage of the same litigation. When it came to the trial Court and escalated to the High Court, it remained the same litigation. The appeal before the Supreme Court is from the suit as a whole and, therefore, the entire subject matter is available for adjudication before the Supreme Court. If, on any other principle of finality statutorily conferred or on account of res judicata attracted by a decision in an allied litigation the matter is concluded the Supreme Court too is bound. Otherwise, the whole lis for the first time comes to the Supreme Court Ex.F.A.No.6/2009 & con. cases -: 74 :- and the High Court's finding at an intermediate stage does not prevent examination of the position of law by the Supreme Court. Intermediate stages of the litigation and orders passed at those stages have a provisional finality."
In Mangal Prasad Tamoli Vs. Narvedshwar Mishra [AIR 2005 SC 1964], the very same legal principles were enunciated by relying on the decisions noted in Satyadhyan Ghosal (supra) and Kshitish Chandra Bose (supra).
63. A Division Bench of this Court has also relied on the aforesaid decision of the Apex court in the matter and held in Mathew Varkey Vs. Abraham [2001 (1) KLT 432] that any court of co-ordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a superior court when it comes up in appeal before it. The argument in short is that those observations made in the judgment in W.P.(C) No.32981/2006, which are almost having the effect of Ex.F.A.No.6/2009 & con. cases -: 75 :- findings rendered in the matter, have resulted in substantial miscarriage of justice and, therefore, it is open to the appellants to challenge the correctness of the judgment in the W.P.(C), even ultimately in an appeal before the Apex court.
64. Both the Senior counsel appearing for the appellants are relying on the decision in Lakshmi Vs. Viswanathan [1999 (2) KLT 621], wherein it was held:
"A cultivating tenant is a person always in possession of the property concerned. Such a certificate is issued by a competent Land Tribunal after finding that he was in possession of the scheduled properties as a cultivating tenant. S.72K(2) says that such a certificate when issued shall be conclusive proof of the assignment to the tenant of right, title and interest of the land owner and the intermediaries if any over the holding or portion thereof to which assignment relates. Tenant means a cultivating tenant always in possession of the proceedings. Therefore, such certificate is the conclusive proof of Ex.F.A.No.6/2009 & con. cases -: 76 :- possession as well. Unless that certificate is set aside by a competent authority or in a court of law, the statutory enforcement in terms of S.72K(2) has to be honoured and a person claiming on the basis of such purchase certificate has to be taken as in possession of the properties."
The aid of the decision in Lakshmi (supra) has been canvased to show that the appellants have a bona fide claim and when they have such a bona fide claim, the obstructions raised by them could not have been weeded out as unnecessary at the threshold, without having a determination through an adjudication.
65. They have canvased another legal position that the judgment passed by this Court in W.P.(C) No.32981/2006 has even resulted in depriving of the appellants their right to property conferred by Article 300A of the Constitution of India and thereby, it has got a serious repercussion on the right to life, which involves right to livelihood of the appellants under Article 21 of the Ex.F.A.No.6/2009 & con. cases -: 77 :- Constitution of India. As per Article 300A, a person cannot be deprived of his property save by authority of law. When a specific procedure to decide a question relating to the right, title or interest in an immovable property relating to an obstructionist is specified through the concerned provisions of Order XXI, which forms a complete code, any deviation from that prescribed procedure cannot claim the authority of law, and the same will be a violation of Article 300A of the Constitution of India. When they are deprived of such a right to property, that will result in the denial of their right to livelihood, which will also be a violation of Article 21 of the Constitution. When such serious questions are involved, the court below could not have passed the impugned order without a proper adjudication as contemplated by law. When no such adjudication was made, it cannot be said that the impugned order was passed by the court below with the authority of law.
66. Transferees pendente lite, even if the appellants Ex.F.A.No.6/2009 & con. cases -: 78 :- are considered as transferees pendente lite, are not in the status of mere trespassers. Of course, as per law, a trespasser is not entitled to protect his possession after having committed a trespass. At the same time, even if it is conceded that the appellants are transferees pendente lite and when they are not claiming the rights as transferees pendente lite from the judgment-debtors, their status is not the same as that of trespassers. In such case, they can retain possession of the property till they are evicted by due process of law. Any short cut or deviation from the due procedure contemplated by law will result in violation of all legal norms. Such persons holding properties cannot be thrown out through any such short cut.
67. It is true that a proper adjudication as contained in the complete code in the scheme under Order XXI may take time. At the same time, as pointed out by the learned Senior counsel Sri.R.D.Shenoy that by merely stating that it may take time, any new procedure which is not Ex.F.A.No.6/2009 & con. cases -: 79 :- contemplated under the provisions of law cannot be adopted. This Court also cannot lay down a new procedure in such cases wherein there are serious repercussion. It seems that through the judgment in W.P.(C) No.32981/2006, a blank cheque has been given to the court below to pass an order on the very same lines as directed by this Court in the said judgment. The court below was directed to determine whether there is any scope for any further enquiry into the claims of the obstructionists. It was also found therein that transferee pendente lite will be bound by the decree. It cannot be said that all transferees pendente lite are bound by the decree.
68. Of course, a transferee pendente lite from the judgment-debtor can be said to be a person bound by the decree. If he is not a transferee pendente lite from the judgment-debtor, it cannot be said that he is always bound by the decree. Of course, within the limited meaning of Section 13 of the Indian Evidence Act, the decree already Ex.F.A.No.6/2009 & con. cases -: 80 :- passed which is not inter parties, is relevant in the matter of an adjudication between persons who are not parties to the decree. Apart from such relevancy and admissibility of such a decree as a piece of evidence, it cannot be said that all decrees, which are not inter parties are to be treated as decrees in rem. The decrees in question were not passed in suits by having recourse to the provisions of Order I Rule 8 of the Code. All the said decrees cannot be treated as decrees in rem, whereas, those are decrees in personam, which of course, is binding on the parties to it. As aforesaid, apart from its relevancy and admissibility under the limited scope of Section 13 of the Indian Evidence Act, it cannot be said that all the transferee pendente lite even if the appellants are considered to be so, who are not claiming as transferee pendente lite from the judgment debtors, are persons bound by the decree.
69. Regarding the burden of proof relating to obstructions, divergent views have been expressed in Ex.F.A.No.6/2009 & con. cases -: 81 :- similar matters. One view is that the burden is entirely on the obstructionist for a determination of his right, title or interest to be adjudicated. Another view is that, the decree- holder, even though he is clothed with a decree which is not inter parties, cannot be absolved from his burden to prove his right or title over the property. When the obstructionists are capable of showing that they have some rights, title or interest over the immovable properties, which are to be adjudicated within the meaning of Order XXI Rule 101 CPC, it cannot be said that the decree-holders, who are clothed with a decree which is not inter parties, have no burden in the matter. An adjudication under the complete code contained in Order XXI Rule 97 and the related provisions is admittedly in the form of a suit and the determination through such an adjudication has the effect of a decree within the meaning of Order XXI Rule 103 of the Code. In such case, this Court is of the view that an obstructionist has even the right to challenge the title of the decree-holder Ex.F.A.No.6/2009 & con. cases -: 82 :- also. Further, such an obstructionist has the right even to challenge the executability or otherwise of the decree. If by any means, the decree has become inexecutable, it cannot be said that an obstructionist cannot raise such a question. He can validly challenge the executability of the decree.
70. A decree-holder cannot always rest in an arm chair by possessing a decree by saying that he has got title, even when the decree contains it. Article 129 of the Limitation Act specifies the period of limitation for filing an application for possession after removing resistance or obstruction to delivery of possession of immovable property, as 30 days. When the law says that such an application is for possession, it involves an adjudication of his right to possession. When it has to be considered as a suit, it cannot be said that such an applicant has no burden at all.
71. It seems that the court below has non-suited the appellants by relying on the provisions of Kerala Private Forests (Vesting and Assignment) Act, 1971 (`Vesting Act', Ex.F.A.No.6/2009 & con. cases -: 83 :- for short) also. It seems that a serious argument was taken up by the learned counsel for the decree-holders before the court below that the leases in favour of the appellants could not be valid in view of Section 3(1) of the Vesting Act as well as based on the Madras Preservation of Private Forests Act, 1949. The learned Senior Counsel Sri.S.V.Balakrishna Iyer has pointed out that the said argument resorted to by the decree-holders before the court below is a double edged weapon. In such case, if it is admitted that the properties in question were private forests as on the appointed day, Section 3(1) of the Vesting Act will come into play. If Section 3(1) of the Vesting Act is invoked, Section 4 also will come into play, which states that all private forests vested in the government under sub-section (1) of Section 3, so long as they remain vested in the government, are deemed to be reserve forests. In such case, if it is argued that these are private forests, definitely, the same must have been vested in the government and consequently, it should be treated as Ex.F.A.No.6/2009 & con. cases -: 84 :- reserve forests within the meaning of Section 4 of the Vesting Act. In such case, the decree-holders cannot claim delivery, as an attempt to take possession of such property is also an offence. It seems that the said question has not been correctly decided by the court below. The decree- holders should not have relied on the provisions of the Madras Preservation of Private Forests Act for getting the appellants non-suited. They ought to have realized that it would act as a double edged weapon as pointed out by the learned Senior counsel for the appellants.
72. The learned Senior counsel for the decree-holders has argued that nobody has a case before the court below that as on the appointed day, i.e., 10.05.1971, any of these properties were private forests. At the same time, it seems that the court below has proceeded with under an assumption that the said properties were parts of private forests. If the decree schedule property being claimed by the decree-holders is a private forest, the appellants being Ex.F.A.No.6/2009 & con. cases -: 85 :- obstructionists can raise that question also to see that the decree has become inexecutable. In order to determine the said question also, the matter ought to have been adjudicated. Without an adjudication, it seems that the court below has determined that the leases in favour of the appellants could not be valid leases. Further, it seems that there are serious questions relating to the identity of the decree schedule properties. This Court is not presently going to the merits of those discrepancies with regard to the identity. The court below ought to have decided the said questions also and determined it through an adjudication.
73. As pointed out, when there are serious questions regarding the identity of the properties, and when it has to be determined whether the properties being possessed by the appellants are portions of the decree schedule property and, also questions relating to the nature of the decree schedule properties are there, it cannot be said that the decree-holders have no burden at all. The appellants as Ex.F.A.No.6/2009 & con. cases -: 86 :- obstructionists are entitled to raise such questions of identity, title etc. and to get it adjudicated. Similarly, it cannot be said that the appellants are bound to swallow the title of the decree-holders declared through the decrees. The appellants have the right to challenge the title of the decree- holders and to establish that the appellants have better rights over the property than the decree-holders, even if the properties are one and the same. All those questions are to be determined through a proper adjudication.
74. The learned counsel for the appellants Sri.R.Rajesh Kormath has invited the attention of this Court to the decision in Karthikeyan Vs. Deputy Commissioner of Excise [2011 (1) KLT 334], wherein it was held in paragraph 5:
"More than a century and a quarter ago, in Taylor Taylor v. Taylor [(1871) 1 Ch D 426]., it was categorically laid down that where a power is given to do a certain thing in a certain way, that thing must be done that way, or not at all, Ex.F.A.No.6/2009 & con. cases -: 87 :- and that other methods of performance are necessarily forbidden. When law prescribes the manner of exercising jurisdiction and confers power for that purpose, it has to be exercised in that manner only. This principle was applied by the Privy Council in Nazir Ahmed Nazir Ahmed v. Emperor (63 Ind App
372). and also by the Apex Court in several cases, including Rao Shiv Bahadur Singh Rao Shiv Bahadur Singh & Anr. v. State of Vindh.P (AIR 1954 SC 322). and Deep Chand Deep Chand v. State of Rajasthan (AIR 1961 SC 1527). In Banarsi Das Banarsi Das v.
Brig.Maharaja Sukhjit Singh & Anr. (1998) 2 SCC 81)., this position was reiterated by the Apex Court. In Babu Varghese Babu Varghese & Others v. Bar Council of Kerala & Ors. (1999 (1) KLT 836 (SC) = (1999) 3 SCC 422)., the Apex Court laid down that it is a basic principle of law that if the manner of doing a particular action is prescribed under any statute, that act must be done in that manner or not at all. The Apex Court stated in Bhavnagar University Bhavnagar University v. Palitana Sugar Mill (P) Ltd. & Ors. (2003) 2 SCC 111)., that it is settled Ex.F.A.No.6/2009 & con. cases -: 88 :- that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities, while acting under the statute, are only creatures of statute and they must act within the four corners thereof. The Apex Court noticed in Ramachandra Keshav Adke Ramachandra Keshav Adke v. Govind Joti Chavare & Ors. (AIR 1975 SC 915) that the said rule has stood the test of time. To the same view is the judgment of this Court in Shamin Sainudhen Shamin Sainudhen & Ors. v. Medical Council of India & Ors. (2010 (4) KLT 103 = 2010 (4) KHC 204 (D.B.))".
75. From all the discussions made above, it can be concluded that the outright denial to have an adjudication of the claims regarding rights, title and interest forwarded by these appellants, by the court below, has resulted in substantial miscarriage of justice. Even though the impugned order was passed by the court below on the basis of the judgment of this Court in W.P.(C) No.32981/2006, the act of the court below in weeding out the claims raised by Ex.F.A.No.6/2009 & con. cases -: 89 :- these appellants without giving an opportunity for them to get their claims adjudicated, cannot be justified. The questions relating to the right, title and interest raised by these appellants have to be determined through a proper adjudication as contemplated under Order XXI Rule 97 and its succeeding provisions of the self contained code relating to such an adjudication. The court below has not complied with the procedure contemplated under Order XXI Rule 105 CPC to have a determination through an adjudication. The findings entered by the court below in the impugned order that any questions do not arise for adjudication is totally erroneous. The impugned order is, therefore, liable to be set aside.
76. The next course of action to be taken in the matter has also to be considered. It is true that the decree-holders had preferred E.A. Nos.508, 509 and 510 of 2006 in the EPs. Admittedly, in those EAs., all these appellants were impleaded. It seems that after getting a safe order through Ex.F.A.No.6/2009 & con. cases -: 90 :- the judgment in W.P.(C) No.32981/2006 from this Court, the decree-holders had waived their right to get those EAs. adjudicated and those EAs. were closed without any adjudication. When the appellants are also parties in those EAs., it is only just, proper, and expedient in the interest of justice to have an adjudication of all those claims through that EAs. Therefore, the course open to this Court at present is to restore those EAs. and remit the same to the court below for a de novo disposal through a proper adjudication as contemplated by law. The court below shall adjudicate the claims relating to the right, title and interest of these appellants as well as the decree-holders by treating the said EAs. independently, in accordance with the complete code as aforesaid and to determine their individual rights.
77. The learned Senior counsel for the appellants have pointed out that in fact the appellants did not get an opportunity to file proper pleadings, by way of applications, Ex.F.A.No.6/2009 & con. cases -: 91 :- as the court below has chosen to number the list of documents with statements filed by the appellants before the court below as EAs. for consideration. Therefore, the parties shall be given an opportunity to file further pleadings in the matter, if so advised. These matters being old, the court below shall make every endeavor to dispose of all these matters, as expeditiously as possible, at any rate, within a period of one year from the date of receipt of a copy of this judgment. The court below need not continue with the E.A. numbers allotted to those list of documents filed by these appellants. The E.A. numbers can be confined to E.A. Nos.508, 509 and 510 of 2006. Further pleadings can be filed in the said matters.
In the result, these appeals are allowed and the impugned common order is set aside. E.A. Nos.508, 509 and 510 of 2006 in the E.Ps. are restored and remitted to the court below for fresh consideration and disposal in accordance with law. The parties shall appear before the Ex.F.A.No.6/2009 & con. cases -: 92 :- court below on 29.09.2014. The court below shall dispose of the same on merits, on the basis of the observations herein before made, as expeditiously as possible, at any rate, within a period of one year from the date of receipt of a copy of this judgment. It is made clear that the court below shall not accept any further applications or pleadings from any persons other than the decree-holders and the present appellants or their legal representatives in the matter.
All the interlocutory applications in these appeals are closed.
B. KEMAL PASHA, JUDGE ul/-