Kerala High Court
Muhammed Yasir vs Alavi on 26 August, 2025
2025:KER:66271
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 26TH DAY OF AUGUST 2025 / 4TH BHADRA, 1947
EX.SA NO. 13 OF 2023
AGAINST THE JUDGMENT AND DECREE DATED 19.08.2023 IN AS
NO.19 OF 2023 OF SUB COURT, MANJERI ARISING OUT OF THE
ORDER DATED 03.10.2017 IN EA NO.38 OF 2011 IN E.P.NO.247 OF
2010 IN O.S.NO.299 OF 2003 OF MUNSIFF COURT, MANJERI
APPELLANT/2ND APPELLANT/4TH RESPONDENT:
MUHAMMED YASIR
AGED 46 YEARS
S/O THETTAN AHAMMEDKUTTY, THETTAN HOUSE,
MUNDAKKAL, POTHUVETTIPPARA P.O, MUTHUVALLOOR
AMSOM, THAVANOOR DESOM ERNAD TALUK, PIN - 673649
BY ADVS.
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
SMT.M.R.MINI
SRI.K.C.KIRAN
SHRI.ANISH ANTONY ANATHAZHATH
SRI.M.DEVESH
SMT.NIVEDHITHA PREM.V
SHRI.THAREEQ ANVER
SRI. T. KRISHNANUNNI- SR.
RESPONDENT(S)/RESPONDENTS & APPELLANTS 1 & 3 TO 8/CLAIM
PETITIONER & 3,5 TO 10:
1 ALAVI
AGED 51 YEARS
S/O MOOSAKUTTY, VENTHATTIL HOUSE, VILAYIL AMSOM,
MUNDAKKAL DESOM, ERNAD TALU, PIN - 676122
EX.S.A.No.13/23
2
2025:KER:66271
2 STATE OF KERALA
REPRESENTED BY GOVERNMENT PLEADER,HIGH COURT OF
KERALA, PIN - 682031
3 AYISHA @ UMMU AYISHA (DIED)
AGED 56 YEARS
W/O THETTAN AHAMMEDKUTTY, THETTAN HOUSE,
MUNDAKKAL, POTHUVETTIPPARA P.O, MUTHUVALLOR
AMSOM, THAVANOOR DESOM, ERNAD TALUK,PIN - 673649
(IT IS RECORDED THAT R6,R7 & R9 ARE THE LEGAL
REPRESENTATIVES OF DECEASED R3 AS PER ORDER DATED
20.11.2023 IN MEMO DATED 14.11.2023 IN EX SA NO.
13/2023)
4 ANVAR SADATH
S/O THETTAN AHAMMEDKUTTY, THETTAN HOUSE,
MUNDAKKAL, POTHUVETTIPPARA P.O, MUTHUVALLOOR
AMSOM, THAVANOOR DESOM ERNAD TALUK,, PIN - 673649
5 RIYAS
S/O THETTAN AHAMMEDKUTTY, THETTAN HOUSE,
MUNDAKKAL, POTHUVETTIPPARA P.O, MUTHUVALLOOR
AMSOM, THAVANOOR DESOM ERNAD TALUK, PIN - 673649
6 AFSAL
AGED 28 YEARS
S/O THETTAN AHAMMEDKUTTY, THETTAN HOUSE,
MUNDAKKAL, POTHUVETTIPPARA P.O, MUTHUVALLOOR
AMSOM, THAVANOOR DESOM ERNAD TALUK, PIN - 673649
7 FAVAS
S/O THETTAN AHAMMEDKUTTY, THETTAN HOUSE,
MUNDAKKAL, POTHUVETTIPPARA P.O, MUTHUVALLOOR
AMSOM, THAVANOOR DESOM ERNAD TALUK, PIN - 673649
8 SALEENA
D/O THETTAN AHAMMEDKUTTY, THETTAN HOUSE,
MUNDAKKAL, POTHUVETTIPPARA P.O, MUTHUVALLOOR
AMSOM, THAVANOOR DESOM ERNAD TALUK, PIN - 673649
9 FASEELA
D/O THETTAN AHAMMEDKUTTY, THETTAN HOUSE,
MUNDAKKAL, POTHUVETTIPPARA P.O, MUTHUVALLOOR
AMSOM, THAVANOOR DESOM ERNAD TALUK, PIN - 673649
EX.S.A.No.13/23
3
2025:KER:66271
BY ADVS.
SRI.CIBI THOMAS - R1
SRI.T.SIVADASAN - R4, R5, R7, R8, R9
SHRI.O.RAMACHANDRAN NAMBIAR - R1
THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON
26.08.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
EX.S.A.No.13/23
4
2025:KER:66271
"C.R."
EASWARAN S., J.
---------------------------------------------------------
Ex S.A. No.13 OF 2023
---------------------------------------------------------
Dated this the 26th day of August, 2025
JUDGMENT
The Execution Second Appeal arises from an order in E.A.No.38/2011 in E.P.No.247/2010 in O.S.No.299/2003.
2. The brief facts necessary for the disposal of the appeal are as follows:
O.S.No.299/2003 is a suit for mandatory injunction directing the State Government to return the property which was relinquished in favour of the Government on 05.09.1967. Finding that the purpose for which the relinquishment was made did not happen, the suit was instituted. The suit was decreed directing the State Government to hand over the possession of the property. For execution of the judgment and decree dated 13.07.2005 in O.S.No.299/2003, the appellant preferred E.P.No.247/2010. In the execution petition, an application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (CPC) was preferred by the 1 st respondent raising an objection against the execution of the decree on the ground that the decree holder did not have any right, title EX.S.A.No.13/23 5 2025:KER:66271 and interest over the decree schedule property. The application was initially dismissed on the ground that the same is not maintainable inasmuch as the claim petitioner was not in possession of the property. Aggrieved, A.S.No.53/2013 was preferred. The order was confirmed. Aggrieved by the dismissal of A.S.No.53/2013, Ex.S.A.No.27/2013 was preferred. By judgment dated 11.04.2014, the appeal was allowed and the matter was remanded back for consideration of the executing court on the ground that the application under Order XXI Rule 97 read with Rule 99 of CPC, is maintainable. The appellant challenged the order passed by this Court in Ex.S.A.No.27/2013, by SLP No.15148/2014 and by order dated 20.01.2017, the Supreme Court dismissed the special leave petition. However, it was ordered that the executing court can take a decision on the application on merits. The question of law raised in the application was left open. Consequent to the order passed by the Hon'ble Supreme Court, E.A.No.38/2011 was partly allowed by order dated 03.10.2017 by the Munsiff Court, Manjeri. Aggrieved by the order, A.S.No.19/2023 was preferred by the appellant, which was also dismissed on 19.08.2023 and hence, the present appeal.
3. On 08.02.2024, when the appeal was admitted, this Court framed the following substantial questions of law:
1. Whether the present petition, at the instance of the claim EX.S.A.No.13/23 6 2025:KER:66271 petitioner, who is out of possession, is maintainable under Order XXI Rule 99 of the Code of Civil Procedure ?, otherwise, whether the present petition is maintainable under Order XXI Rule 97 of the Code of Civil Procedure ?
2. What is legal effect of not pressing a previously instituted suit, without liberty to file another suit, when identical reliefs are asked for in a subsequent suit ?
3. Whether the present petition is barred under Order XXII of the Code of Civil Procedure and the relevant rules thereunder?
4. Heard, Sri.T.Krishnanunni - learned Senior Counsel, assisted by Smt.Meena A., appearing for the appellant and Sri.O.Ramachandran Nambiar - learned Senior Counsel, assisted by Sri.Cibi Thomas, appearing for the respondents.
5. Sri.T.Krishnanunni - learned Senior Counsel appearing for the appellant, submitted that the order passed by the executing court as well as the First Appellate Court are unsustainable inasmuch as the Supreme Court had left open the question of law to be considered by the executing court. The executing court ought to have considered that the application filed under Order XXI Rule 97 read with Rule 99 was not maintainable, since admittedly the claim petitioner was not in possession of the decree schedule property. It is further contended that even assuming for argument sake that the application is found to be maintainable, the same could not have been allowed under any circumstances especially since an earlier suit for the same relief was preferred by the claim petitioner as O.S.No.197/1992 and the same was not pressed and EX.S.A.No.13/23 7 2025:KER:66271 the suit was dismissed by judgment dated 15.01.1998. The executing court therefore erred egregiously in finding that the bar under Order XXIII Rule 1(4) will not apply to the execution proceedings. Such perverse application of law is required to be interfered with by this Court in exercise of its powers under Section 100 of the CPC.
6. Per contra, Sri.O.Ramachandran Nambiar, learned Senior Counsel appearing for the respondents, opposed the submissions of Sri.T.Krishnanunni - learned Senior Counsel, contending that the very relinquishment of the decree schedule property in O.S.No.299/2003 is void inasmuch the appellant did not have any right, title and interest over the property to relinquish the same in favour of the Government. At any rate, going by the proceedings in Ext.A4, the revenue officials have clearly found that the appellant had no right, title and interest over the property and therefore, the relinquishment is bad and therefore, further directed the revenue officials to return the property back to the claim petitioner. It is further submitted that as on the date of the filing of O.S.No.197/1992, the claim petitioner was in possession of the plaint schedule property. It is further pointed out that for maintaining an application under Order XXI Rule 97 read with Rule 99, it is not necessary that a person should be actually EX.S.A.No.13/23 8 2025:KER:66271 dispossessed from the property. In support of his contentions, he relied on the decisions of the Supreme Court in Shreenath and Anr. v. Rajesh and Ors. [AIR 1998 SUPREME COURT 1827] and Jini Dhanrajgir and another v. Shibu Mathew and Anr.
[AIR 2023 SUPREME COURT 2567]. Finally, it is submitted that the concurrent findings rendered by the courts below does not require any interference in exercise of the powers under Section 100 of the CPC.
7. I have considered the rival submissions raised across the Bar and have perused the judgments rendered by the courts below and the records of the case.
8. Two issues are required to be considered by this Court:
1. Whether an application under Order XXI Rule 97 is maintainable?
2. If so, whether the courts below were justified in allowing the application notwithstanding the bar under Order XXIII Rule 1(4) of the CPC ?
9. Admittedly, the claim petitioner is not in possession of the decree schedule property. The application is one under Order XXI Rule 97 of the CPC. Order XXI Rule 97 reads as under:
"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 EX.S.A.No.13/23 9 2025:KER:66271 with the provisions herein contained."
Order XXI Rule 99 of CPC reads as under:
"Rule 99 - Dispossession by Decree holder or purchaser-
(1)- Where any person other than the judgment -debtor is dispossessed of immovable property by the holder of a decree for possession of such property, or where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession.
(2) Where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."
A bare reading of Rule 97 will show that only a decree holder can maintain an application for removal of obstruction during the course of execution. This view finds support from the Supreme Court's decision in Sriram Housing Finance and Investment India Ltd v. Omesh Mishra Memorial Charitable Trust [2022 SCC OnLine SC 794], wherein it was held that on a conjoint reading of the aforesaid provisions, it can be observed that under Rule 97, it is only the "decree holder' who is entitled to make an application in case where he is offered resistance or obstruction by 'any person'. It was further held that considering the fact that the applicant therein was never dispossessed from the decree schedule property, the application is not maintainable.
10. Normally, based on the above, it would appear that EX.S.A.No.13/23 10 2025:KER:66271 the answer to the first substantial question of law is straightforward. But, it is not so. When the decision in Sriram Housing Finance and Investment India Ltd (supra) was rendered, the Supreme Court did not notice the binding precedent of a larger bench.
11. In Silverline Forum Pvt. Ltd. v. Rajiv Trust and Another [(1998) 3 SCC 723], a Three Judges Bench of the Supreme Court considered the impact of Order XXI Rule 97 of the CPC and held that a third party to the decree, who offers resistance, would thus fall within the ambit of Rule 101. Paragraph Nos.10, 11 and 12 are extracted hereunder:
"10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under rule 97 or rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of property Act.
11. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.
12. The words "all questions arising between the parties to a EX.S.A.No.13/23 11 2025:KER:66271 proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which the executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. similarly, a third party, who questions the validity of a transfer made by a decree- holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. in the adjudication process envisaged in order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section."
12. In Babulal v. Raj Kumar and Others [AIR 1996 SC 2050], the Supreme Court held that an application under Order XXI Rule 99 of the CPC cannot be dismissed on the ground that the objector was not dispossessed and that the executing court is required to determine the question when the appellants had objected to the execution of the decree as against the appellants, who are not parties of the decree. The case considered by the Supreme Court arose from a decree for specific performance.
13. In Shreenath and Another v. Rajesh and Others [AIR 1998 SC 1827], it was held that a third party can approach the court before he is being dispossessed and he need not have to wait till he is dispossessed. Para 10 of the decision reads under.
"Under sub-clause 1 order 21, Rule 35, the Executing Court EX.S.A.No.13/23 12 2025:KER:66271 delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by he decree. Order 21, Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the Court delivers possession by fixing a copy of the warrant in some conspicuous place of the said 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. In other words, the decree-holder gets the symbolic possession. Order 21, rule 99 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 applicants 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 EX.S.A.No.13/23 13 2025:KER:66271 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 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." However, it must be noticed that when the Supreme Court rendered the decision to Sriram Housing Finance and Investment India Ltd (supra), the binding precedent of the Three Bench as well as the decision of bench of co-equal strength was not noticed. In such circumstances, whether the subsequent decision qualifies as a binding precedent under Article 141 is the question which this court should address.
14. In Sandeep Kumar Bafna v. State of Maharashtra [(2014) 16 SCC 623] the Supreme Court held that, if the subsequent decision rendered by the Supreme Court fails to take note of a binding precedent rendered earlier, the same cannot be followed as a binding precedent under Article 141 of the EX.S.A.No.13/23 14 2025:KER:66271 Constitution of India.
15. Hence, in view of the decision of the Supreme Court in Silverline Forum Pvt. Ltd (supra), this Court is inclined to answer the first question of law against the appellant and in favour of the respondent/claim petitioner. Thus it cannot be said that the application preferred by the 1st respondent under Order XXI Rule 97 was not maintainable before the executing court. In view of the above finding, the question as to whether the application preferred by the 1st respondent will fall under Rule 99 becomes immaterial.
16. While addressing the substantial questions of law 2 and 3 framed by this Court, the withdrawal of the suit or the abandonment of the cause by the 1 st respondent when the earlier suit O.S.No.197/1992 assumes significance.
17. Before going to the said question, it is worthwhile to note that O.S.No.299/2003 was decreed as per judgment dated 13.07.2005 and the State preferred A.S.No.114/2005 which was dismissed on 08.03.2010. Thereafter, the appellant filed E.P.No.247/2010. At this point of time, E.A.No.38/2011 was filed by the respondent claim petitioner. Though initially the claim petition was dismissed, this Court in Ex.S.A.No.27/2013 remanded the claim petition for fresh consideration finding it to be maintainable. On reconsideration, the executing court, upheld the claim of the EX.S.A.No.13/23 15 2025:KER:66271 respondent by holding that the earlier judgment will not be a bar for preferring the claim petitioner. However, a perusal of Ext.B1 judgment dated 15.01.1998 in O.S.No.197/1992 shows that the claim petitioner had consciously abandoned the lis. Ext.B1 judgment reads as under:
"Suit for eviction and compensation for damages. Suit not pressed (vide endorsement on plaint). Hence - Dismissed. No cost."
18. A reading of the judgment leaves no room for doubt that the claim petitioner consciously abandoned the earlier suit. A close reading of the plaint in the aforesaid suit reveals that, the plaintiff/claim petitioner had sought for a decree for recovery of possession of the decree schedule property in O.S.No.299/2003 with the appellant as 4th defendant in the party array. The decree for recovery of possession is sought against the State as well on the ground that the relinquishment made by the decree holder herein qua the 3rd defendant in the suit is not binding on him. When the said suit was not pressed, will it constitute as a bar for further proceedings?.
19. Order XXIII of the Code of Civil Procedure deals with the withdrawal and adjustment of suits. Order XXIII Rule 1(4) reads as under:
"1. Withdrawal of suit or abandonment of part of claim.-- (4) Where the plaintiff-- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a EX.S.A.No.13/23 16 2025:KER:66271 claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
A reading of the aforesaid rule shows that, when a plaintiff abandons a suit or a part claim under sub-rule (1) or withdraws the suit without permission under sub-rule (3), he shall be precluded from instituting a fresh suit. The executing court however formed an opinion that in view of Order XXIII Rule 4, the dismissal of the suit as not pressed will not affect the execution proceedings.
20. Before going into the question as to whether the provisions of Rule 4 of Order XXIII applies to proceedings under Order XXI Rule 97 or 99, it is necessary for this court to consider the impact of Rule 1(4). Admittedly, the claim petitioner chose to withdraw the earlier suit as not pressed.
21. However, Shri O.Ramachandran Nambiar, the learned Counsel for the respondent-claim petitioner sought to sustain the impugned order by contending that the dismissal of the suit as not pressed will not constitute as a bar in filing the claim petition. In support of his contention relied on the decisions of this Court in Soman Nair v. State of Kerala [2008(2) KLT 103], Vasu@Vasal Vasu v. K.V. Varghese [2007(4) KHC 1031(DB)], and Manakkal Nadakumar v. Subramanyan. M and others [I.L.R.2017(1) Kerala 907].
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22. In Soman Nair (supra), this Court was called upon to decide whether dismissal of an impleading petition as not pressed will constitute as res judicata and it was held that the dismissal will not constitute as res judicata. Similarly, the Division Bench in Vasu@Vasal vasu (supra) considered the question as to whether Order XXIII Rule 1(4) applied to Rent Control proceedings and it was held that, it will not apply. In Manakkal Nadakumar (supra), the question arose as to whether a dismissal of partition suit on technical grounds bars the plaintiff from preferring a fresh suit. It was held that, the claim for partition being recurring cause of action, the dismissal of the suit on technical grounds will not constitute as a bar for filing a fresh suit.
23. However, the applicability of the precedents cited at the bar by the learned Counsel for the respondent-claim petitioner is highly doubtful. There cannot be any dispute as regards the proposition that if the cause of action is recurring, the bar under Order XXIII Rule 1(4) will not apply. But the question is whether a suit for recovery of possession is having a nature of recurring cause of action.
24. It must be remembered that Article 65 of Limitation Act 1963 envisages that a suit for recovery of possession be filed within 12 years from the date on which the possession becomes adverse EX.S.A.No.13/23 18 2025:KER:66271 to the plaintiff. It is difficult for this court to envisage a position and to hold that when the possession of the property is lost, it constitutes a continuing cause of action enabling the plaintiff to institute the suit repeatedly. The concept of continuing cause of action is that which creates a continuing source of injury and renders the person doing such act responsible and liable for the injury. However, if a wrongful act constitutes an injury, the cause of action is complete, even if damage from the wrongful act continues.
25. In Balakrishna Savalram Pujari Waghmare and others V. Shree Dhyaneshwar Maharaj Sansthan and others [AIR 1959 SC 798], the Supreme Court held that, where a wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of ouster and so there would be no scope of application of Section 23 of the Limitation Act 1908.
26. Based on the discussion above, there cannot be any doubt as regards the proposition that a suit for recovery of possession does not have a recurring cause of action. Still further, going by the principles laid down by this court in Ramakrishnan v. Thanka [2000 (3) KLT 886], when a suit is not pressed by the plaintiff, there is abandonment of the suit. Therefore, there cannot be any doubt that on withdrawal of O.S.No.192/1997, the claim petitioner is certainly barred from instituting a fresh suit on the EX.S.A.No.13/23 19 2025:KER:66271 same cause of action. Therefore, irresistible conclusion is that, if a subsequent suit is barred under Rule 1(4), the plaintiff cannot be permitted to agitate the same cause in an application under Order XXI Rule 97 or 99 as the case may be. This is more so because, the adjudication of the issues raised in an application under Rule 97 or Rule 99 partakes the character of a suit.
27. Next, it is to be considered as to whether by operation of Rule 4 of Order XXIII, the proceedings in execution are saved or not. Order XXIII Rule 4 reads as under.
"4. Proceedings in execution of decrees not affected.-- Nothing in this Order shall apply to any proceedings in execution of a decree or order."
28. In Mulla on Code of Civil Procedure 1908, 18th Edn, the learned author has explained the true purport behind Rule 4 of Order XXIII. The learned author has opined as follows "the Jurisdiction of the executing court to enforce such a compromise is not taken away by this rule. This rule only lays down that r3 is not to apply to execution proceedings. Similarly, Or 20, r11(2), also does not affect the power of the executing court since it merely enables the court passing the decree to order postponement of payment of decreetal amount. That is quite different from a compromise between the parties to agree while the execution proceedings are pending to postponement of payment and payment of higher interest. The rule does not affect the power of EX.S.A.No.13/23 20 2025:KER:66271 the executing court to decide questions arising out of such compromise or to execute the decree as adjusted by compromise between the parties.
29. In Moti lal Banker (dead) By his Legal Representative v. Maharaj Kumar Mahmood Hasan Khan [1968 SCC Online SC 219], the Supreme Court held as follows Para 3- The jurisdiction of the executing Court to enforce such a compromise is not taken away by Order 23, Rule 4 of the Code of Civil Procedure. The effect of Order 23, Rule 4 is that Order 23, Rule 3 does not apply to execution proceedings. Independently of Order 23, Rule 3,the provisions of Order 21, Rule 2 and Section 47 enable the executing Court to record and enforce such a compromise in execution proceedings. Nor does Order 20, Rule 11(2) affect this power of the executing Court. Order 20, Rule 11 enables the court passing the decree to order postponement of the payment of the decretal amount on such terms as to the payment of interest as it thinks fit on the application of the judgment-debtor and with the consent of the decreeholder. It does not affect the power of the executing Court under Section 47 and Order 21, Rule 2.
30. Read as may, this Court could not find any enabling power to the executing court under Order XXIII Rule 4 or under any subsequent rules, to tide over the rigour of sub-rule (4) of Rule 1 of Order XXIII. Equally so, if there is a recurring cause of action, the bar under sub-rule (4) of Rule 1 of Order XXIII will not apply. At any rate, this Court is not persuaded to hold that a suit for recovery of possession partakes a character of having a recurring cause of action. Therefore, the bar under sub-rule (4) of Rule 1 of Order XXIII will certainly apply to a subsequent suit. Hence, this Court sees no reason as to why the said bar should not apply to an EX.S.A.No.13/23 21 2025:KER:66271 application under Order XXI Rule 97 or Rule 99, as the case may be.
31. Resultantly, this Court is of the view that the substantial questions of law 2 and 3 are to be answered in favour of the appellant and against the respondent/claim petitioner and thus the appellant is entitled to succeed on the above points.
Accordingly, the appeal is allowed by setting aside the order dated 03.10.2017 passed by the Munsiff Court, Manjeri, in E.A.No.38/2011 and also judgment dated 19.08.2023 in A.S.No.19/2023 on the files of Sub Court, Manjeri. Consequently, E.A.No.38/2011 will stand dismissed as not maintainable. The parties are directed to suffer their respective costs.
Sd/-
EASWARAN S, JUDGE ACR