Madras High Court
Janaki Ammal vs Ganapathi Konar And Two Ors. on 3 May, 1996
Equivalent citations: 1996(2)CTC243, (1996)IIMLJ377
ORDER S.S. Subramani, J.
1. The revision is filed by the decree-holder in O.S.No.324 of 1982, on the file of the District Munsif Court, Tirukoilur.
2. The suit filed by the decree-holder was one for declaration of title and other reliefs. In the suit, there are three defendants. For reasons better known to the plaintiff, during trial, one of the defendants was removed from the party array. Later, the suit was decreed as prayed for, when execution was proceeded, defendant who was removed from the party array, filed the present application under Section 47 of the Code of Civil Procedure, alleging that he is entitled to one half of the property for which decree has been granted in favour of the plaintiff. He said that he is entitled to the northern 47 cents on the basis of partition deed entered into before institution of the suit, and that since he is not a party to the proceedings, the decree is not binding on him.
3. The maintainability of the application was challenged by the decree-holder before the executing court.
4. On merits also, he contended that the document is invalid and he is entitled to recovery on the basis of the decree.
5. By the impugned order, Court below accepted the contention of the socalled contractor and said that the decree is not binding on him and that he is not liable to be dispossessed in so far as the northern 47 cents is concerned, which is the subject matter of the suit. It is against the said Order, the present revision petition is filed.
6. The main contention that is raised by learned counsel for the petitioner is that the petition filed by a stranger is not maintainable and that the same is anticipatory in nature. According to him, where an execution is proceeded in accordance with a decree, a stranger cannot file an application before the executing Court requesting that the Court should make an adjudication against the interest of the decree-holder. At the first blush, even though the said argument seems to be attractive, I do not find any ground to accept the same in view of the decision reported in Babalal v. Raj Kumar and Ors., . In that case, there Lordships said that such an application even if filed, the executing Court has to treat it as an obstruction, and an adjudication will have to be made. Their Lordships said that dispossession is not a condition precedent for filing such an application. In that case, their Lordships also followed an earlier decision of the Supreme Court reported in Bhanwar Lal v. Satyanarain and Anr., .
In Bhanwar Lal's case, their Lordships, after quoting Order 21, said in paragraph 4, thus:-
"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, CPC clearly envisages that many person even including the judgment- debtor irrespective 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 gots right under Rule 97 to make an application against third party to have his obstruction on enquiry thereon could be done, since each occasion of obstruction or resistance furnishes cause of action to the decree holder to make an application for removal of the obstruction or resistance by such person.
7. In the later decision Babulal v. Raj Kumar and Ors., , their Lordships said that there is no condition imposed under Rule 97, CPC. that the claim must be dispossession and only at that time he can file the application. Their Lordships said, to have an adjudication, the party can be in possession, and even before he is dispossessed, he is entitled to make on application before the executing Court to have his claim adjudicated. In the said decision, their Lordships have held thus:-
"The controversy is no longer res integral. This Court in Bhanwar Lal v. Satyanarain and Anr., considered the controversy and had held that even an application filed under Order 21, Rule 35(3) or one filed under Section 47 would be treated as an application under Order 21, Rule 97 and an adjudication is required to be conducted under Rule 98. Dispossession of the applicant from the property in execution is not a condition for declining to entertain the application.
The reasons are obvious. The specific provisions contained in Order 21, Rules 98,101 and 102 enjoin conduct of a regular adjudication, finding recorded thereon would be a decree and bind the parties.
It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the object or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 amendment to CPC that may be pending on the date of the commencement of the amended provisions of CPC was secured. Thereafer, under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21, Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, the executing Court is required to determine the question, when the appellants had objected to the execution of the decree is against the appellants who were not parties to the decree for specific performance."
So, the preliminary objection taken by learned counsel for the petitioner no longer stands. The executing Court has held that the decree is not binding on the first respondent herein and the decree holder is entitled only for the remaining portion. That is an adjudication contemplated under Order 21, Rule 98, C.P.C. when that is so, under Rule 103 of Order 21, C.P.C, an appeal alone lies and not a revision before this Court.
8. When this was brought to the notice at the learned counsel, no submitted that no opportunity has been given and there was no clear finding under Order 21, Rule 98, C.P.C. I cannot agree with the said submission. Even if the Order is in any way a wrong or vague, that is also a matter which can be challenged only in an appeal. I am not being into the merits of the case. Since the revision petition is not maintainable, the civil revision petition is dismissed. However, there will be the order as to costs.