THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No.1498 OF 2007 DATED: 24-06-2010 Between:
Ainavilli Satyanarayana & 5 others.
. PETITIONERS And The Executive Officer, Sri Sita Rama Chandra Swamy varu, Bhupayya Agraharam, Amalapuram, East Godavari District.
. RESPONDENT ORDER:
This Civil Revision Petition is directed against the order, dated 05-03-2007, in E.A.No.29 of 2007 in E.P.No.51 of 2005 in O.S.No.97 of 1992 on the file of the learned Senior Civil Judge, Amalapuram, wherein the said application filed by the petitioners herein under Order XXI Rule 97 CPC was dismissed.
2. Heard learned counsel for the petitioners and the learned counsel for the respondent. Perused the record.
3. Respondent herein filed the suit in O.S.No.97 of 1992 for eviction of the defendants from the plaint schedule property belonging to the plaintiff-temple and also for mandatory injunction. After contest, the suit was decreed on 20-01-2000. It is not disputed that the appeal preferred by the defendants in A.S.No.45 of 2000 and A.S.No.110 of 2000 was also dismissed. Therefore, defendants filed S.A.No.729 of 2005 and this Court dismissed the same on 31-12-2006, directing to deliver possession of the plaintiff-temple. Petitioners, who are the kith and kin of D6 to D10, previously filed an application in E.A.No.61 of 2006 seeking protection of their possession over the plaint schedule lands and the same was dismissed by the executing Court on 20-06-2006, after contest. Thereafter, the present application is filed in E.A.No.29 of 2007 by the petitioners under Order XXI Rule 97 CPC seeking the self-same relief.
Order XXI Rule 97 reads as follows:
“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 with the provisions herein contained.
4. As seen from the above provision, it is clear that whenever there has been resistance to delivery of possession sought to be taken by the decree-holder or purchaser sold in execution of the decree and whenever there is obstruction by any person, the decree-holder or the purchaser may make an application complaining of such a resistance or obstruction.
5. Order XXI Rule 97 CPC thus enables the decree- holder or purchaser or the auction purchaser to seek removal of the obstruction or resistance for delivery of the property, when such obstruction or resistance is caused by anyone. In the present case, the application under Order XXI Rule 97 CPC is not filed by the decree-holder or auction purchaser but it is filed by the petitioners, who are third parties. The executing Court has rightly observed that the present application by the third parties is not maintainable. That apart, the earlier application filed by the petitioners in E.A.No.61 of 2006 for the self-same relief is not maintainable.
6. Even otherwise, petitioners have not adduced any evidence to substantiate their claim of ownership over the schedule property. In the impugned order, it is observed by the Court below that in spite of opportunity given, no oral evidence is let in by the petitioners. None was examined on their behalf. The plea of the petitioners, making the claim of ownership over the schedule property, therefore remained totally unsubstantiated. Under those circumstances, the impugned order passed by the executing Court, dismissing the application filed by the petitioners, who are none else than the family members of the judgment-debtors themselves, does not call for any interference of this Court. It is obvious that the present application is filed only to protract the proceedings and delay the execution of the decree and defeat the right of the decree-holder-temple over the schedule property.
7. Accordingly, Civil Revision Petition is dismissed.
Interim order granted on 18-06-2007 shall stand vacated. There shall be no order as to costs.
G.V.SEETHAPATHY, J 24th June, 2010.
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