This Civil Revision Petition is preferred against the order dated 18.08.2009 passed in unnumbered E.A. of 2009 in E.P.No.249 of 2002 in R.C.O.P.No.73 of 1985 on the file of Principal District Munsif Court, Kumbakonam.
2. An ex-parte order of eviction has been passed against one Theskhnamoorthy, who is said to have let out the property to the petitioner executing a rent deed in his favour by getting a sum of Rs.15,000/-(Rupees fifteen thousand only) as consideration on 18.08.1998. According to the petitioner, he was paying the rent of Rs.750/-(Rupees seven hundred and fifty only) per month to the said Theskhnamoorthy till January 2008. Thereafter, it is alleged that Theskhnamoorthy colluded with the decree holder and refused to receive the rent. Subsequently an exparte eviction had come to have been passed.
3. Admittedly, the petitioner is not a party to the proceedings in R.C.O.P.No.73/85. It is submitted by the petitioner that he is running a hotel and tea stall in the name and style of "HOTEL SRIRAM CABE". On an apprehension that he may be evicted forcibly, it is said that he has filed a suit in O.S.No.129 of 2008 on the file of the learned Principal District Munsif, Kumbakonam, for permanent injunction restraining the said Theskhnamoorthy and the decree holders or their agent men or anybody claiming through them from interfering and evicting the plaintiff forcibly except under due process of law and the said suit is pending. It appears that the decree holder has filed the execution petition and delivery has been ordered.
4. The petitioner has filed an application under Order 21, Rule 97 of the code of Civil Procedure, as an obstructor, but the trial Court, without even numbering the petition, has returned it on the ground that the petition is not maintainable. Thereafter, he has represented the said petition sustaining the maintainability of the petition citing various decisions. Again, the Court has returned the petition stating that the previous returns has not been complied with. As against the said order returning the petition filed under Order 21, Rule 97 of Civil Procedure Code, this Civil Revision Petition has been filed.
5. Order 21, Rule 97 of Civil Procedure Code, reads as follows: "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 with the provisions herein contained."
In Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and another reported in (1997)3 SCC 694, the Honourable Supreme Court has held that the executing Court must first adjudicate upon objections of the appellant on merits under Rule 97(2) r/w Rr.101 and 98 instead of insisting upon first handling over possession and then moving of application by the appellant under Rule 99. In another decision reported in AIR 2002 SCC 251 in N.S.S.Narayana Sarma and Others Vs. M/s Goldstone Exports(p) Limited and Others, the Honourable Supreme Court has held that all relevant issues arising in the matter on an application under Order 21, Rule 97 or Rule 99 shall be determined by Executing Court and not by a separate suit.
6. When the delivery of possession of property has been obstructed and a dispute arises as to whether the person causing obstruction is a sub-tenant of the judgment debtor or not, the Execution Court should determine the question by doing proper investigation under Order 21, Rule 97 of Civil Procedure Code.
7. It is the case of the petitioner that he is in possession from 1998 onwards running a hotel and tea stall in the name and style of "HOTEL SRIRAM CABE" and he is not aware of the decree passed against one Thekshnamoorthy, who is the decree holder. In this case, that the petitioner has filed a petition under Order 21, Rule 97 of Civil Procedure Code, stating that he is in possession. The trial Court ought to have entertained the petition, investigate into the matter and decide the issue whether the obstruction was justified or not. As the execution court to which an application is made under Order 21, Rule 97 of the Code refused to adjudicate upon the obstructions and the claim of the petitioner who obstructed to the execution proceedings it had clearly failed to exercise jurisdiction vested in it by law.
8. Consequently, the impugned order of the executing court returning the petition filed under Order 21, Rule 97 of the Code is set aside and it is necessary to direct the executing court to adjudicate upon the claim of he petitioner as per provision of Order 21 Rule 97, Sub rule(2) CPC read with Order 21 Rule 98 within a period of one month from the date of receipt of a copy of this order.
9. Accordingly, the above Civil Revision Petition is allowed. No costs.
ssl To The Principal District Munsif, Kumbakonam.