Madras High Court
M/S. Sundar Timber Private Limited vs Manakchand Jamad (Died) on 16 August, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 16 .08.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P.(NPD) No. 1362 of 2013 and M.P.No. 1 of 2013 M/s. Sundar Timber Private Limited represented by its Director Mr.R.Mahendran New No. 125, Sydenhams Road Periamet, Chennai 3. ... Petitioner Vs Manakchand Jamad (Died) 1. Parasmal Jain 2. M.Padamchand Jain 3. M.Gouthamchand 4. M.Rajesh Kumar 5. M.Raja 6. New Salem Timbers rep. by Partners 1) A.B.Kirubakaran 2) A.B.Thulasiraman 7. Mari Trading Company rep. by its Prop. Devika Mahendiran al are at 125, Sydenhams Road Periament, Chennai - 3. .. Respondents Civil Revision Petition filed against the order and decretal order dated 06.03.2013 made in E.A.No.1556 of 1996 in E.P.No. 783 of 1994 in O.S.No. 3023 of 1988 on the file of the IX Assistant Judge, City Civil Court, Chennai . For Petitioner :- Mr.Vijay Narayan Senior Counsel for M/s.Karthick For Respondents :- Mr.T.Sundaresan (R1) M/s. P.Krishnan (R2 to R4) ORDER
The petitioner is the second obstructor / third party in E.P.No. 783 of 1994 in O.S.No. 3023 of 1988 on the file of the 9th Assistant Judge, City Civil Court, Chennai. He is aggrieved against the order passed in E.A.No. 1556 of 1996 in allowing the said application filed under Order 21 Rule 97 CPC by the decree holders.
2. The case of the petitioner is as follows:-
Originally the subject matter land belonged to one Venkatapathy Naidu. It was leased to one Meenakshi Ammal for carrying on business under the name and style of M/s. Meenakshi Timber and Tiles Depot. The said firm put up a superstructure over the said land. On 15.11.1940 the said Meenakshi Timber and tiles Depot executed a sale deed of the leasehold rights in respect of the land and ownership over the building in favour of one K.Muthuswamy Devar , he being the sole proprietor of the company by name M/s Devar and Company, Timber Merchants. In pursuant to the above said sale deed, a fresh deed was executed on 7.1.1941 in respect of the said land by the said Vankatapathy Naidu, the erstwhile owner of the land in favour of M/s. Devar and Company. On 6.3.1948, the said Venkatapathy died and the ownership of the land devolved upon his legal heirs. The said Muthusamy Devar died on 31.12.1963 and the leasehold interest in respect of the land and ownership of the superstructure devolved upon his legal heirs viz., wife, son and daughter. On 25.11.1983 the legal heirs of Muthusamy Devear entered into a lease deed with one R.Mahendran who was carrying on business under the name and style of M/s.Sundar Lumber Industry. During the year 1988, the petitioner company was incorporated to take over the business of the said M/s.Sunder Lumber Industry. Consequently, the petitioner herein became the successor in interest of the said industry and accordingly the name of M/s. Sunder Timber Pvt Ltd., has been changed to M/s. Sundar Timber and Plyboards Pvt Ltd., with effect from 28.6.2011. The petitioner has been in continuous and uninterrupted possession of the said building as a tenant under one Raja, the 5th respondent herein (one of the legal heirs of Muthusamy Devar). While so, one Varadappa , the legal heir of late Venkatapathy Naidu sold the land to one Manakchand Jamad and the first respondent herein through a sale deed dated 25.9.1987. The said Manakchand Jamad died on 22.4.2001. The respondents 1 to 4 herein are his legal heirs. The 5th respondent herein is the person under whom the petitioner is occupying the premises as a tenant.
3. During his life time, the said Manakchand Jamad and the first respondent herein jointly filed a suit in O.S.No. 3023 of 1988 on the file of the 12th Assistant City Civil Court, Madras for eviction of the 5th respondent herein from the said property without making the petitioner as a party to the suit, knowing fully well that the petitioner is occupying the premises as a tenant under the 5th respondent. On 27.4.1993, the said suit was decreed and consequently the decree holders filed E.P.No 783 of 1994 for delivery of possession. In the meantime, the 5th respondent herein filed A.S.No. 157 of 1994 on the file of the City Civil Court, Chennai, challenging the judgment and decree made in O.S.No. 3023 of 1988. The said appeal was dismissed on 19.2.1996. Further, a second appeal filed by the 5th respondent before this Court in S.A.No. 1447 of 1996 was also dismissed on 23.2.2006. In the meantime, the decree holders filed E.A.No. 1556 of 1996 under Order 21 Rule 97 CPC for removal of obstruction by showing the petitioner and the respondents 6 and 7 herein as obstructors . The 5th respondent died on 8.5.2006 .
4. Though the petitioner was set exparte in E.A.No. 1556 of 1996, in pursuant to an order passed in E.A.No.2324 of 2010 dated 10.10.2012, the exparte order was set aside and the petitioner was permitted to contest the E.A. on merits. In the meantime, the petitioner filed O.S.No. 6871 of 2011 on the file of the City Civil Court, Chennai against the decree holders as well as the legal representatives of the 5th respondent for a declaration that the petitioner is a statutory tenant in respect of the premises and cannot be evicted contrary to the provisions of the Rent Control Act. The said suit is pending at the stage of the trial. However, the Court below allowed E.A.No. 1556 of 1996 on 6.3.2013 and directed the judgment debtors and the obstructors 1 to 3 to remove the superstructure by themselves failing which it was further ordered to demolish the superstructure through Court and deliver vacant possession of the property to the decree holders. Aggrieved against the said order passed in E.A.No. 1556 of 1996 dated 6.3.2013, the present Civil Revision Petition is filed by the petitioner/ second obstructor/ third party.
5. Mr.Vijay Narayan, learned Senior Counsel appearing for the petitioner submitted as follows:-
The petitioner claimed independent statutory right as a tenant in respect of the superstructure. Therefore, the Court below ought to have considered and decided all the questions arising between the parties as contemplated under Order 21 Rule 101 CPC. Without making the petitioner as a party in the suit , no decree can be obtained against him. Any finding rendered in the suit is in respect of the judgment debtor only and not in respect of the obstructors. There was no adjudication of petitioner's right by the Court below and therefore, the present Revision is maintainable. In other words, only when there is an adjudication of rights under Order 21 Rule 97 CPC, such order is appealable. The decree holders have only stepped into the shoes of Raja, viz., the 5th respondent herein and therefore once the decree is passed, for removing the petitioner from the property, the decree holders have to take steps only under the Rent Control Act and not by way of proceedings under Order 21 Rule 97 CPC. As the Court below has not adjudicated the independent right of the petitioner as tenant , the matter has to be remitted back to the Court for fresh adjudication.
6. In support of his submissions, the learned Senior Counsel relied on the decisions reported in 1997 (3) SCC 694 (Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and Another); 1998 (4) SCC 543 (Shreenath and Another Vs. Rajesh and Others); 2000 (10) SCC 405 ( Anwari Vs. Pramod D.A.Joshi and Others); 2002 (2) SCC 656 (Ratan Lal Jain and Others Vs. Uma Shankar Vyas and Others); 2002 (7) SCC 50 ( Tanzeem E Sufla Vs. Bibi Haliman and Others).
7. Per contra, the learned counsels appearing for the first respondent/ decree holder submitted as follows:-
The suit property was purchased in 1987 by the first respondent and his father. After purchase of the property, notice was issued on 16.11.1987 to the tenant Raja (5th respondent herein) to attorn tenancy and a copy was also served on the petitioner herein. A reply was given on 19.11.1987 . The petitioner also filed a separate suit for declaration of his right in respect of the very same property and the same is pending. The decree holders are not claiming any right over the superstructure put up by the 5th respondent Raja and therefore there is no necessity for adjudication of right in respect of the superstructure. The petitioner is not having any right over the land and the superstructure as he is admittedly a tenant in respect of the superstructure alone. Therefore, he was not made as a party in the original suit.
8. The learned counsels appearing for the respondents 2 and 4 / decree holders submitted as follows:-
The earlier tenant attorned the tenancy in favour of the decree holders . The petitioner filed an application under the provisions of the Tamil Nadu City Tenants Protection Act wherein his claim was rejected. Challenging the said rejection, a Civil Revision Petition was filed in C.R.P.No. 3934 of 1993 which also came to be dismissed on 24.3.1995. Therefore, the order passed by the Court below is perfectly valid apart from the fact that the said order being an appealable order, the present Civil Revision Petition filed against the said order is not maintainable.
9. As a reply to the said contentions, learned Senior Counsel Mr.Vijaynarayan, once again reiterated that as there was no adjudication of the rights of the parties no appeal is maintainable and the present Civil Revision Petition filed is perfectly in order. In support of such submission, he relied on the decisions reported in Ram Kumar Tiwari and Others Vs. Deenanath and Others (AIR 2002 Chhattisgarh 1) and Most. Sanjna Devi Vs. Amar Yadav and Others (AIR 2008 Patna 44).
10. From the above narrated facts and circumstances and upon considering the pleadings, the arguments and the order passed by the Court below, the following questions emerge for consideration in this Civil Revision Petition.
1. Whether this Civil Revision Petition is maintainable as against the order passed under Order 21 Rule 97 CPC ?
2 If the Civil Revision Petition is maintainable whether the order of the Court below suffers any infirmity or irregularity warranting interference in this Civil Revision Petition ?
11. Let me consider both the questions together. The order under challenge in this Civil Revision Petition is the one passed under Order 21 Rule 97 CPC. The said application was filed by the decree holders seeking for removal of obstruction caused by the petitioner and others. A perusal of Order 21 Rule 97 CPC would show that the holder of a decree for the possession of immovable property if resisted or obstructed by any person in obtaining possession of the property, may make an application to the Court complaining such resistance or obstruction. If any such application is filed then the Court shall proceed to adjudicate upon the application in accordance with Order 21 Rule 98 and Order 21 Rule 101.
12. A further perusal of Order 21 Rule 101 would show that all questions arising between the parties including the questions relating to right, title or interest in the property shall be determined by the Court dealing with the application and not by a separate suit. Order 21 Rule 98 CPC contemplates that upon determination of the questions referred to in Rule 101, the Court shall make an order either allowing the application and directing that the applicant be put into the possession of the property or dismissing the application or pass such other order as it may deem fit. Order 21 Rule 103 contemplates that the orders made under Order 21 Rule 98 or under Order 21 Rule 100 shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. To put it in simple terms, the order of adjudication passed under Order 21 Rule 98 is to be treated as a decree and the same shall be subjected only before an appellate court by way of challenge. In this case, the suit in O.S.No. 3023 of 1988 was decreed on 27.4.1993 as follows:-
"1/ gpujpthjp jhth brhj;jpypUe;J mokidapy; nghlg;gl;Ls;s mtuJ nky;Tiuia 27/7/93f;Fs; mfw;wp. thjpf;F fhyp RthjPdk; mspf;f ntz;Lk;. kw;Wk; 2/ gpujpthjp thjpf;F fPH;fz;lthW fzf;fplg;gl;L mDkjpf;fg;gl;l bryt[j;bjhifahd U:/184/50 (U:gha; E}w;W vz;gj;Jehd;F kw;Wk; fhRfs; Ik;gJ kl;Lk;) bfhLf;f ntz;Lk;/"
13. Thus, from the perusal of the said decree, it is crystal clear that it is not a simple decree for delivering vacant site but on the other hand a perusal of clause (1) of the decree would show that the defendant should remove the superstructure put up by him and hand over vacant possession of the suit property to the decree holders. It is also a fact that the said decree has been confirmed by this Hon'ble Court in S.A.No. 1447 of 1996 dated 23.2.2006. Though it is stated that the legal heirs of the defendant Raja preferred an appeal before the Hon'ble the Supreme Court, nothing is placed on record to show that any such appeal is filed or pending or any order is passed therein by the Apex Court. In the absence of any materials placed, it has to be construed that the decree passed in O.S.No. 3023 of 1988 on 27.4.1993 has become final, conclusive and binding on the parties.
14. The decree holders filed E.P.No. 783 of 1994 for executing the said decree. When they found obstruction raised by this petitioner and two others, (the respondents 6 and 7 herein), the decree holders filed the application under Order 21 Rule 97 CPC in E.A.No. 1556 of 1996 for removal of such obstruction. The Court below found that it is not fair on the part of the judgment debtor or any obstructors to contend before the execution court that the decree holder is not entitled to get delivery of vacant land when already the title of the decree holders have been decided by the trial Court as the owner of the suit land and passed a decree for delivery of vacant land. It is also found that when the court Amin went to the suit property on 25.4.1996 to effect delivery in terms of the decree, the second and third obstructors obstructed stating that there was no specific decree for removal of the superstructure which belongs to the judgment debtor. Therefore, the court Amin returned the warrant for direction for removal of the superstructure. It is the contention of the obstructors before the Court below that the execution court cannot go beyond the decree to order for demolition of superstructure especially when the second obstructor viz., the petitioner herein is in lawful possession and enjoyment of the super structure as a tenant and entitled to protection under the provisions of the Tamail Nadu Rent Control Act. The Court below further observed that except Exs.R4 and R6 lease deeds, no other lease deed was executed in favour of the second obstructor/ the petitioner herein to run the business in the disputed premises and that he has not disclosed any reason for not having any further lease deed to that effect. It is also pointed out by the Court below that the superstructure was constructed by the judgment debtor with the consent of the predecessor of the decree holders well prior to the filing of the suit and the suit was filed for delivery of vacant land only. Thus, it is observed that if at all any right is available to the judgment debtor it is only to claim compensation for removing the superstructure and when the judgment debtor did not claim any such compensation towards the superstructure and when the trial Court has passed the decree for delivery of vacant land, the judgment debtor has no other go except to demolish the building either by himself or to go out of the building after taking his articles. Thus, the Court below having found that the third party obstructor cannot have any right to oppose the decree, further held that the application for removal of the superstructure is maintainable by treating the building in the schedule mentioned property as an obstruction.
15. The petitioner herein is admittedly claiming only the tenancy right that too under the judgment debtor viz., the 5th respondent herein. It is also an admitted fact that the petitioner has not entered into any lease deed with the decree holders after their purchase. It is also not the case of the decree holders that the superstructure belongs to them. On the other hand, it is their definite case that only the vacant land belongs to them for which they obtained a decree in O.S.No. 3023 of 1988.
16. At this juncture, a perusal of the decree passed in O.S.No.3023 of 1988 once again would show without any ambiguity that the decree holders obtained a decree for delivery of vacant land after removing the superstructure put up by the judgment debtor. Therefore, it is clear that the superstructure has to be removed by the judgment debtor and delivery of the vacant land should be handed over to the decree holders. There can not be any difficulty in understanding the said decree. When that being the factual position, it has to be seen as to whether the petitioner's contention that they are having an independent right over the superstructure as a statutory tenant is maintainable. The petitioner's claim over the superstructure as a statutory tenant is only under the judgment debtor and not under the decree holders. If the decree holders are not owners of the superstructure, then the question of themselves resorting to Rent control proceedings to evict the petitioner from the petition mentioned premises does not arise. As they have a right and title over the vacant land, the decree holders obtained a decree in their favour and thus the judgment debtor viz., the 5th respondent, who is bound by the decree, has to remove the superstructure and hand over vacant possession. Needless to say that the petitioner cannot have any better title than the judgment debtor. If he is a tenant under the 5th respondent then he is also bound by the decree for removal of the superstructure granted against the judgment debtor, especially when the said decree has become final and conclusive. As already pointed out, the judgment debtor or his legal representatives have allowed the decree to become final and consequently they are bound by the decree. The petitioner is not having any independent right traceable to the decree holders.
17. The scope under Order 21 Rule 97 CPC is for enabling the decree holder for the possession of immovable property to make an application for removal of obstruction made by any person. All questions including the questions relating to right, title or interest in the property arising between the parties shall have to be determined by the Court dealing with such application filed under Order 21 Rule 97. Thus, only the questions arising between the parties to the proceeding and in respect of a property for which a decree is passed have to be adjudicated upon by the Court. In this case, the decree holders are not claiming any right, title or interest over the superstructure. Nor there is a decree to that effect. They have obtained a decree for possession of vacant land alone after removing the superstructure by the judgment debtor/ 5th respondent herein. Therefore, the question relating to right, title or interest in respect of the superstructure can at the best be raised only by the judgment debtor, who in fact failed to succeed to establish such right, title or interest over the superstructure and on the other hand, he suffered the decree whereby he was directed to remove the said superstructure and hand over vacant possession of the land to the decree holders. Thus, it is manifestly clear that the petitioner herein claiming only the tenancy right under the 5th respondent over the said superstructure cannot have any better or independent right over the same. In other words, the said tenancy right goes with the superstructure or ceased to exist once the superstructure is directed to be removed as per the decree. Certainly, the petitioner cannot have any objection or say in the matter of removal of superstructure as per the decree. Only when the superstructure exists the tenancy right continues. When continuous existence of the superstructure is defeated by the decree granted by court, the tenant cannot have any independent claim or right over the superstructure merely based on the tenancy rights. Therefore, in my considered view, the question raised by the petitioner is not all a question to be determined under Order 21 Rule 101 CPC as in effect, the said question is not arising between the parties to the proceedings.
18. It is also to be noted at this juncture that the petitioner has filed a separate suit in O.S.No.6871 of 2011 seeking for declaration of his right as a statutory tenant in respect of the very same premises and the same is said to be pending at the stage of trial. The Court below rightly found that the building in the schedule mentioned property is an obstruction and therefore the application filed for removal of the same is maintainable.
19. The learned Senior Counsel Mr.Vijay Narayan submitted that the rights of the petitioner has not been adjudicated upon by the Court below and therefore, the matter has to be remitted back for fresh consideration. I am unable to appreciate the said contention. I have already pointed out that the petitioner is not having any independent right and on the other hand his claim of tenancy right over the superstructure is only under the 5th respondent/ judgment debtor and not under the decree holders. When already a decree is passed for removal of superstructure and for delivery of vacant possession of the land and when the judgment debtor had suffered a decree and allowed the same to become final, then the tenant viz., the petitioner cannot be permitted to say that he is having an independent right over the superstructure , more particularly under the circumstances when the decree holders are not claiming title over the superstructure. Thus, the Court below has rightly considered this aspect and ordered removal of obstruction. Even though an appeal is contemplated under Order 21 Rule 103 CPC, I am not impressed to hold that the revision is not maintainable under the facts and circumstances of the case.
20. The learned Senior Counsel relied on the decision reported in 1997 (3) SCC 694 (Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and Another). A perusal of the said decision of the Apex Court would show that the person claiming independently who are strangers to the decree, if offered obstruction or resistance to the execution of the decree, then he would squarely fall within sweep of the words "any person" as found in Order 21, Rule 97 sub-rule (1). There is no quarrel about the said proposition. The facts of the said case before the Apex Court would show that the obstructor therein claimed to be a stranger was occupying the decretal premises in his own right and thus offered resistance to the execution of the decree obtained by the decree holder against the judgment debtor. The facts of the present case is not similar to the one before the Apex Court. Here, as stated supra, the decree holders are not claiming right over the superstructure and the decree is also not granting any title in respect of the superstructure on the decree holders. On the other hand, it is an admitted fact that the decree is for delivery of vacant possession of the land after removing the superstructure. It is also admitted by the parties that the superstructure was put up by the 5th respondent/ judgment debtor and the petitioner herein was only a tenant under the 5th respondent. Therefore, the question of independent right over the superstructure, as claimed by the petitioner, does not arise and consequently the said decision of the Apex Court is not applicable to the facts and circumstances of the present case.
21. The next decision relied on by the learned Senior Counsel is reported in 1998 (4) SCC 543 (Shreenath and Another Vs. Rajesh and Others). Here also the issue before the Apex Court was as to whether the third party in possession of the property claiming independent right as a tenant and not a party to a decree under execution, could resist such decree by seeking adjudication of his objections under Order 21 Rule 97 of the Civil Procedure Code ? A perusal of the facts of the said case before the Apex Court would show that the respondent No.1 therein filed a suit for redemption of his mortgage which came to be decreed by directing the delivery of vacant possession of the mortgaged property to the first respondent therein. The appellants before the Apex Court were not parties in the said suit. When the decree holder put his decree in execution in which the appellants therein obstructed on the ground that vacant possession cannot be delivered because they were the tenants in respect of the said property. Thus, it is clear that the very property where the appellants therein are in occupation as tenants was sought to be taken delivery under execution since the decree itself was granted for delivery of vacant possession of the said property. At the risk of repetition, I would like to point out again that the facts of the present case before this Court are totally different as the superstructure is not the property over which the decree holders claim title and on the other hand the decree granted to them is only for delivery of vacant possession of the property after removing the superstructure. Therefore, in my considered view the said decision of the Apex Court is also not helpful to the petitioner.
22. The next decision is reported in 2000 (10) SCC 405 ( Anwari Vs. Pramod D.A.Joshi and Others). In the said decision, the Apex Court has held that possession of the appellant therein 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. No doubt, the rights of the obstructionist has to be decided under Order 21 Rule 97 CPC and the Court below has rightly decided the same in favour of the decree holders in this case.
23. The next decision is reported in 2002 (2) SCC 656 (Ratan Lal Jain and Others Vs. Uma Shankar Vyas and Others), wherein the Apex Court at paragraph 5 has held as follows:-
5. Having heard the learned counsel for the parties, we are of the opinion that the appeals are devoid of any merit and no fault can be found with the view taken by the High Court. Rules 35 and 36 of Order 21 of the CPC are relevant and clinch the issue arising for decision. Where a decree is for the delivery of any immoveable property, possession thereof shall be delivered to the party to whom it has been adjudged, or his agent, by removing any person bound by the decree who refuses to vacate the property, if it becomes necessary to do so. (Rule 35, sub-rule 1). Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. (Rule 36) The former is known as actual or physical delivery of possession while the latter is known as delivery of formal or symbolic possession. In the latter case, the person in actual occupation is not physically dispossessed from his possession of the decretal property. Still delivery of possession in the manner contemplated by Rule 36 remains delivery of formal or symbolic possession so far as the person in actual possession is concerned but as against the person bound by the decree, it amounts to actual delivery of possession. (See five-Judge Bench decision in Juggobundhu Mukerjee and Ors. Vs. Ram Chunder Bysack 1880 ILR 5 Calcutta 584 and Full Bench decision in Jayagopal Mundra Vs. Gulab Chand Agarwalla and Ors. AIR 1974 Orissa 173). The rights of the person bound by the decree stand extinguished, he is removed from the property in the eye of law and his right and entitlement whatever it may be qua the person in actual possession and not bound by the decree stand vested in the decree holder."
24. Learned Senior Counsel by relying on the above said decision would submit that the decree holder stepped into the shoes of the 5th respondent and once the decree is passed for removing the petitioner from the property , the decree holders have to take steps only under the Rent Control Act and that this aspect has not been considered by the executing court while deciding the application under Order 21 Rule 97 CPC. I am not able to appreciate the contention of the learned Senior Counsel . This submission is acceptable only when the decree is granted in respect of the superstructure also. In other words, if the decree holders are entitled to take delivery of the superstructure along with the land from the 5th respondent judgment debtor, then what the learned Senior Counsel says may be correct by applying the decision of the Apex Court reported in the above case. But, as I found, the decree is not for delivering the superstructure and on the other hand it is for delivering the vacant land after removing the superstructure by the judgment debtor themselves. Therefore, the question of decree holders stepping into the shoes of the judgment debtor does not arise so as to warrant proceedings under the Rent Control Act to evict the petitioner herein. Thus, I am of the view that the said decision is also not helpful to the petitioner in any way.
25. The other decision relied on by the learned Senior Counsel is reported in 2002 (7) SCC 50 ( Tanzeem E Sufla Vs. Bibi Haliman and Others). In the above said decision, the Apex Court held that Order 21 Rule 101 clearly provides that all questions relating to right, title or interest in property relevant to the adjudication of the application shall be dealt with in the application and not by a separate suit. It was also further observed therein that the High Court therein therefore, erred in refusing to hear the appellant on the ground that it has already filed a suit for declaration of its title and for declaring that the decree passed in the suit which is put for execution is not binding on it. The above decision is relied on by the learned Senior Counsel only to contend that filing of the suit by the petitioner separately in O.S.No. 6871 of 2011 will not preclude this court or the executing court to decide the rights of the parties under Order 21 Rule 97 application. The application was allowed by rejecting the contention of the petitioner on the ground that he has filed a separate suit. On the other hand a perusal of the order would show that the Court below has gone into the merits of the matter in detail and rejected the contention of the petitioner. Here also, I have dealt with the issue in detail as discussed supra and found that the petitioner's tenancy right over the superstructure is not an independent right traceable with that of the decree holders and consequently, when the decree itself is not declaring the title over the superstructure on the decree holders, the petitioner cannot be permitted to say that he is having an independent right.
26. The other two decisions relied on by the learned Senior Counsel reported in Ram Kumar Tiwari and Others Vs. Deenanath and Others (AIR 2002 Chhattisgarh 1) and Most. Sanjna Devi Vs. Amar Yadav and Others (AIR 2008 Patna 44) would also reveal that third party's application filed under Order 21 Rule 97 in both the cases were dismissed as not maintainable . Therefore the respective High Courts have come to the conclusion that it is not a decree as no adjudication was made on Order 21 Rule 97 and consequently held that the Civil Revision Petition is maintainable. I have already pointed out that, here in this case, it is an application filed under Order 21 Rule 97 by the decree holder for removal of the obstruction and the Court below has considered the said application on merits and passed a detailed order of adjudication. Therefore, the learned counsel for the petitioner cannot rely on those decisions to contend that there is no adjudication at all . Consequently, the order passed by the court below in allowing the application under Order 21 Rule 97 does not warrant interference by this Court.
27. In the result, the Civil Revision Petition is dismissed. Consequently, the connected M.P. is closed. No costs.
16.8.2013 Index:Yes/No Internet:Yes/No krr/ To The Registrar City Civil Court Chennai.
K.RAVICHANDRABAABU,J.
krr/
Pre-Delivery Order in
C.R.P.(NPD) No. 1362 of
2013
Dated:- 16.08.2013