Madras High Court
Donna Rossi Kitchen Line vs D.Harikrishnan on 26 July, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 26.07.2013 Coram THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU C.R.P.No.2626 of 2013 and M.P.No.1 of 2013 Donna Rossi Kitchen Line, Rep. By its Sole Proprietress, Mrs.Remani S.Kumar, No.C2, III Floor, Olivia Apartments, No.34, Ramappa Nagar Main Road, Perungudi, Chennai 96. ... Petitioner -vs- 1.D.Harikrishnan 2.M/s.Farwood Industries, Rep. By its Managing Director, M.P.Farook, No.4/65, Old Mahabalipuram Road, Perungudi, Chennai 96. ... Respondents Prayer : Civil Revision Petition is filed under Article 227 of the Constitution of India to call for the records pertaining to E.A.No.2139 of 2013 in E.P.No.2549 of 2012 in O.S.No.1620 of 2009 pending on the file of the Hon'ble IX Assistant City Civil Court, Chennai and set aside the order dated 11.07.2013 passed in E.A.No.2139 of 2013 in E.P.No.2549 of 2012 in O.S.No.1620 of 2009. For Petitioner : Mr.D.Muthukumar For Respondents : Mr.M.V.Chandran (For R1) ORDER
This Civil Revision Petition is filed by the petitioner/obstructor in E.P.No.2549 of 2012 in O.S.No.1620 of 2009 on the file of the City Civil Court, Chennai. The Court below dismissed his application in E.A.No.2139 of 2013 filed under Order 21 Rule 97 CPC.
2.Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the first respondent.
3.The first respondent as the plaintiff filed a suit in O.S.No.1620 of 2009 against the second respondent herein seeking for delivery of possession of the suit property. On 30.06.2011 the trial court decreed the suit as prayed for and directed the defendant to quit and deliver vacant possession of the suit property within a period of two months. Aggrieved defendant filed an appeal in A.S.No.394 of 2011 on the file of the City Civil Court, Chennai. By a judgment and decree dated 17.09.2012, the First Appellate Court dismissed the appeal, thereby confirming the judgment and decree of the trial court. Further appeal before this Court in S.A.No.1264 of 2012 also came to be dismissed on 09.01.2013. In the meantime, the decree holder filed execution petition in E.P.No.2549 of 2012 seeking to execute the said decree. The petitioner before this Court filed E.A.No.2139 of 2013 under Order 21 Rule 97 CPC by claiming himself as an obstructor and sought for conducting an enquiry and to uphold his legal right as sub-tenant. The said application was resisted by the first respondent herein/decree holder by specifically contending that the same is not maintainable under Order 21 Rule 97 CPC apart from opposing the said application on merits as well. The Court below held that the application is maintainable and however found that on merits the petitioner herein is not entitled to the relief sought for on merits. Accordingly the Executing Court rejected the said application.
4.The learned counsel appearing for the petitioner fairly submitted and conceded that the application filed by the petitioner under Order 21 Rule 97 CPC is not maintainable and in fact he has also cited a judgment which in fact was placed before the Lower Court reported in 2000 (10) SCC 405 (Anwarbi vs. Pramod D.A. Joshi) to say that the application was not maintainable. The learned counsel also placed a decision of the Hon'ble High Court of Andhra Pradesh in CDJ 2012 APHC 890 (T.Srinivas and others vs. E.Ravinder and others) to contend that an application under Order 21 Rule 97 CPC is maintainable only at the instance of the decree holder and not by an obstructor. Thus he contended that the Court below ought not to have gone into the merits of the matter and given a finding when the application filed by the petitioner itself is not maintainable. Therefore he is aggrieved against the finding rendered by the Court below on the merits of such application.
5.Per contra, the learned counsel appearing for the first respondent submitted that the Court below though wrongly held that the application is maintainable, has however gone into the merits of the matter as well and rightly given a finding that the petitioner herein is not the sub-tenant and he is not entitled to any relief in the said application. Therefore he submitted that the order passed by the Court below does not warrant any interference by this Court.
6.In this case the petitioner is a third party/obstructor and filed an application under Order 21 Rule 97 CPC. A bare perusal of the said provision would show that it is to be filed only at the instance of the decree holder seeking for removal of an obstruction, if made by any person. Thus when there is an obstruction, only such obstruction gives a cause of action to the decree holder to move before the Court by filing an application under Order 21 Rule 97 CPC seeking for removal of such obstruction. On the other hand, I doubt as to whether the obstructor himself can come to the Court and file an application under Order 21 Rule 97 CPC by contending that he is making an obstruction and let the Court decide the issue. It could not have been the intention and scope of Order 21 Rule 97 CPC. No doubt if a person other than the Judgment debtor is removed from the suit property he can approach the Court under Order 21 Rule 99 CPC complaining about such removal and to seek for an adjudication on the rights of the parties. In this case admittedly the petitioner has not been removed and on the other hand he has come to the Court by filing an application under Order 21 Rule 97 CPC saying that he is obstructing the execution proceedings and therefore his right has to be adjudicated. Certainly that is not the course of action contemplated under Order 21 Rule 97 CPC. A perusal of the decision of the Division Bench of the Andhra Pradesh High Court referred to supra would also show that the application is maintainable only at the instance of the decree holder and not by anybody else. Relevant paragraph of the order passed therein is extracted here under:
"Even otherwise the law is well settled that the remedy under Order 21 Rule 97 CPC is available only to the decree holder for possession of immovable property or the purchaser of any such property sold in execution of a decree. Rule 97 of Order 21 of CPC reads as under:
(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 contained.
A plain reading of the above provision shows that it is a remedy available to the decree holder if he is resisted or obstructed by any person in obtaining possession of the property. Whenever such an application is made by the decree-holder under Rule 97 of CPC complaining to the Court resistance or obstruction by any person, all questions arising between the decree-holder and any such person shall be adjudicated by the executing Court itself under Order Rule 101 of CPC. May be that, such an application filed by the decree-holder can be opposed by any person in possession by seeking adjudication of the objections, however such person himself cannot maintain any application under Order 21 Rule 97 of CPC.
The view expressed by us is fortified by the decision of the Supreme Court in SHREENATH v. RAJESH (1998) 4 SCC 543 = AIR 1998 SC 187). Following the said decision, it was also held by a learned Single Judge of this Court in POTHURI THULASIDAS v. POTRU NAGESWARA RAO (2 supra) that it is not permissible for a judgment-debtor to file an application under Order 21 Rule 97 of CPC."
7.No doubt the learned counsel appearing for the petitioner contended that since the application is not maintainable, the Court below ought not to have gone into the merits of the matter. But the perusal of the order of the Court below shows that it has not found that application is not maintainable and on the other hand it has found that it is maintainable and then it has gone into the merits of the matter and decided the same on merits. Therefore the petitioner cannot find fault with the Court below in going into the merits of the matter. A perusal of the finding rendered by the Court below would show that the petitioner is not a sub-tenant and on the other hand he is only an agent of the judgment debtor. It is also found that he is only a franchisee and that the petitioner had not filed any documents in support of his contention to show that he is a different entity. Thus after the finding that the petitioner is not a sub-tenant and in possession of the suit property in that capacity, the Court below has rejected the application. Thus I find that the finding rendered by the Court below on merits need not be disturbed since the same is to be viewed as a finding on merits even assuming that the application is maintainable under Order 21 Rule 97 CPC. Accordingly, the Court below has rejected the application rightly. Consequently the Civil Revision Petition deserves no merits and the same is liable to be dismissed.
8.Accordingly, the Civil Revision Petition is dismissed. No cost. Consequently connected miscellaneous petition is closed.
cse To
1.M/s.Farwood Industries, Rep. By its Managing Director, M.P.Farook, No.4/65, Old Mahabalipuram Road, Perungudi, Chennai 96.
2.The IX Assistant City Civil Court, Chennai