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3. The case of the petitioners is as follows:
The petitioners are the owners of the subject property and the subject property was leased out to the first respondent for storing scrap iron materials. However, in the petition mentioned property, the second https://www.mhc.tn.gov.in/judis C.R.P. Nos.687 and 688 of 2011 respondent in C.R.P. No.687 of 2011/obstructor is doing business under the name and style of M/s.Kumutha Iron Traders.
8. Mr.P.Sankaranarayanan, learned counsel for the petitioners/legal heirs of the decree holder, submits that the Executing Court should have seen that obstructor is admittedly claiming right under the first respondent/judgment debtor and he is not entitled to obstruct delivery of possession under Order XXI Rule 97 and 98 CPC. The learned counsel would submit that the Executing Court should have seen that Ex.R1/deed of absolute sale and conveyance of superstructure excluding site, was brought by the judgment debtor and the obstructor in collusion without any reference to the petitioners in an attempt to defeat the rights of the decree holder. The Executing Court should have seen that Ex.R7/deed of partnership is exfolie created document (unregistered) with a view to defeat the decree. In any event, the Court should have seen that Ex.R7 has no relevance to the question involved since it is concerned only with alleged partnership business. The Executing Court should have considered that the alleged superstructure must have come only after the suit and in any event it is for the obstructor to establish the date of construction as to whether the same is existence prior to the suit.
12. This Court gave anxious consideration to the submissions of the learned counsel appearing on both sides and carefully perused the materials available on record and the decisions relied on by both sides. https://www.mhc.tn.gov.in/judis C.R.P. Nos.687 and 688 of 2011
13. The petitioners/legal heirs of the decree holder filed the application in E.A.No.4354 of 2009 seeking removal of the obstruction and obstructors. The case of the petitioners is that the obstructor is admittedly the power agent of the judgment debtor and he has no right to obstruct the execution proceedings. To establish the same, the first petitioner was examined as PW1 and she has filed proof affidavit reiterating the contentions raised in the affidavit filed in support of the petition and 3 documents were marked as Exhibits No.P1 to P3.
16. On perusal of the said decree, it appears that the decree is silent about the superstructure and there is no evidence as to when it was put up. Admittedly, the obstructor has established his possession as owner of the superstructure by adducing evidence. In the evidence of PW1 also it is admitted that the obstructor is in possession of the petition mentioned property as he purchased the superstructure. As rightly pointed out by the Executing Court that neither the decree holder nor the petitioners/legal heirs of the decree holder have worked out appropriate remedy with reference to the superstructure. As per the decree, it is appropriate to deliver the vacant possession of the petition mentioned property as described in the decree as a vacant land. There is no mention about the existence of superstructure. As such, the finding of the Executing Court that delivery of possession of vacant land of the petition mentioned property cannot be effected as there is no order with reference to the removal or demolition of the superstructure in https://www.mhc.tn.gov.in/judis C.R.P. Nos.687 and 688 of 2011 the petition mentioned property. As the obstructor being the owner of the superstructure, he cannot simply be dispossessed without specific order on the removal or demolition of the superstructure.