The petitioner instituted O.S.No.236 of 2014 in the Munsiff's Court, Perumbavoor against one Vijayan Pillai. In the suit, the plaintiff pointed out that he was one of the co-owners alone with two other persons of the same business premises. The defendant Sri.Vijayan Pillai was stated to be a close friend and it is alleged that in the B schedule property which contained a building, Mr.Vijayan Pillai was running a business. It is alleged in the plaint that B schedule property which was occupied by Sri. Vijayan Pillai lies on the eastern side of A schedule property. Since the plaint B schedule property did not have direct access from the road, permission was sought by Sri.Vijayan Pillai to make use of plaint A schedule property for parking facility. Consent was given. Due to the policy accepted by the State Government, Sri.Vijayan Pillai could not run the bar. When the plaintiff came to know that said Vijayan Pillai is trying to transfer his right in the business to another person, the plaintiff issued notice to Sri. Vijayan Pillai requiring him revoking the consent given for parking facility. Since Sri.Vijayan Pillai was not amenable to give up the right in respect of the premises, the suit was laid.
2. Vijayan Pillai had entered appearance and the records indicate that the parties entered into a compromise which is evidenced by Ext.P1. Since the judgment debtor in O.S.No.236 of 2014 violated the injunction decree, the petitioner filed E.P. No.84 of 2014 on 15.11.2014 against the third respondent in this proceeding. E.P.No.84 of 2014 was filed under Order XXI Rule 32 of CPC and relief was sought for only against the third respondent. While so, the first and the second respondent moved the execution court by E.A.233 of 2014 invoking the provision under Order XXI Rule 99 of CPC claiming to have their right, title, interest and possession over plaint A schedule property in the suit adjudicated. To the said petition filed by respondents 1 and 2, the petitioner herein filed Ext.P4 objection. Even though, in the objection filed by the petitioner, he questioned the maintainability of Ext.P3 petition, while that was pending, the court posted the case for pre-trial steps and held that evidence needs to be adduced in the case. On 1.12.2014, respondents 1 and 2 filed three more applications, one of which is EA 246 of 2014. The relief sought for in E.A.No.246 of 2014 was an order from the execution court to open the gate kept locked by the petitioner so as to facilitate entry of respondents 1 and 2 into 'A' schedule property in the suit and that prayer was granted.
3. The said order is under challenge.
4. The learned counsel appearing for the petitioner contended that Ext.P2 petition under Order XXI Rule 99 & 97 or as the case may be is totally misconceived and those provisions are inapplicable to the proceedings. The learned counsel went on to point out that there was no decree for recovery of possession as contemplated under the Code of Civil Procedure and there was no attempt from the side of the decree holder to take delivery of possession, such recovery or title over the property so as to enable any person to take a claim regarding his independent possession over the suit property. Further, the learned counsel points out that the decree obtained against the defendant in O.S.No.236 of 2014 is a personal decree and it can be only against that person or his agents.
5. Relying on Order XXI Rule 99 of CPC, the learned counsel went on to point out that a mere reading of the provisions will clearly establish that Ext.P3 petition filed by the respondents 1 and 2 is not maintainable.
6. Sri. V.V.Asokan, the learned senior counsel appearing for respondents 1 and 2, on the other hand, would rather contend that it was on a false allegation that the suit itself was laid on and it is a collusive affair between the plaintiff and Sri. Vijayan Pillai, who was the sole defendant in O.S.No.236 of 2014.
7. According to the learned counsel, under the guise of the decree obtained in the suit, respondents 1 and 2, who are assignee from the two persons made mention in the plaint as co-owners of the plaint A schedule property, have been prevented entry into the property. The learned counsel pointed out that even though respondents 1 and 2 were not parties to the suit, they can approach the court concerned under Order XXI Rule 99 r/w 101 and 98 and Section 151 of CPC. In support of his contention, the learned counsel relied on the decision in Ashan Devi and another Vs. Phulwasi Devi and others (AIR 2004 SC 511), Maya Devi Vs. Lalta Prasad (2014 KHC 4105) and Unnikrishnan and others Vs. Kunhibeevi and others (2011(1) KHC 352).
8. The question then arises for consideration whether Ext.P3 is maintainable or not. The court below had not decided on that issue.
9. When the matter was taken up for hearing before this Court, this court ascertained whether the parties before this court seek an adjudication on this matter on the question of maintainability of Ext.P3 petition. Answer was in the affirmative.
10. One shall not forget that O.S.No.236 of 2014 was filed for permanent prohibitory injunction against Sri. Vijayan Pillai seeking to restrain him from making use of plaint A schedule property for parking vehicles. Respondents 1 and 2 before this court have a case that plaint A schedule property in O.S.No.236 of 2014 is not the exclusive property of the plaintiff in the suit and they are also co-owners of the property having purchased it from two other persons who were mentioned in the plaint as the co-owners along with the plaintiff. It is also contended on behalf of them that the hotel in B schedule property was actually run by them and in order to prevent them, a collusive decree had been obtained. Since their possession is interfered with, they have no remedy other than to approach the court under Order XXI Rules 97 or 99 or as the case may be since a separate suit is barred under the provisions of the code.
11. The contentions raised by the learned counsel for respondents 1 and 2 do not appear to have much force. The decree against Vijayan Pillai, the sole defendant, the third respondent before this Court, was sought to be executed as per Order XXI Rule 32 CPC.
12. The specific mode of execution sought for was arrest and detention and there was no attachment sought for.
13. It is significant to notice that plaint in O.S.No.236 of 2014 does not make a claim that the property exclusively belonged to the plaintiff in the suit. In fact, in a portion of the plaint, it is mentioned that he is a co-owner along with two other persons.
14. Of course, the plaintiff has not disclosed that respondents 1 and 2 had purchased shares of the two other persons over plaint A schedule property.
15. If one goes through Order XXI Rule 97 and 99 as the case may be, it is evident that those provisions are attracted only in cases where the possession or delivery of the property is sought for against a third party, who is not a party to the decree. The Code by amendment in 1976, prevent an independent suit in such a case being filed. The claim is to be tried as if it is a suit. When delivery of the property is sought in execution or decree being executed claiming delivery, if the rights of third parties, who are not parties to the suit are affected, they are entitled to approach the court under Order XXI Rules 97 and 99 of CPC or as the case may be.
16. Even though, a strict reading of Order XXI Rule 99 would indicate that a person mentioned therein can approach the court only on dispossession, by judicial precedence, it is held that even prior to dispossession to be more precise in anticipatory dispossession, petition can be filed.
17. In the decision reported in Ashan Devi and another Vs. Phulwasi Devi and others (AIR 2004 SC 511), the fact show that was a suit in relation to specific performance of contract, where decree was granted in favour of the plaintiff. In execution of the decree when delivery was attempted to be obtained and third parties intervened, the court went on to adjudicate the right also.
18. In the decision reported in Maya Devi Vs.
Lalta Prasad (2014 KHC 4105), though it is only a money decree, in execution thereof, the property was attached and the claimants came forward with a claim that the property did not belong to the judgment debtor and in fact belonged to them. In that context, the right, title and claim put forwarded by the claimants was adjudicated in that case.
19. In Unnikrishnan and others Vs. Kunhibeevi and others (2011(1) KHC 352), it is seen that the suit is in relation to a mortgage property and the right to property and possession of property were in issue. In that context, the court observed that any claimant or third party who is not a party to the decree has to take recourse to provision in Order XXI to establish his right.
20. One fails to see how the principles laid down in the above decisions can have application to the facts of the present case. Apart from the fact that the decree is a personal decree, no property belonging to the judgment debtor is sought to be proceeded by the decree holder in execution of the decree. When no right to property is being sought to be enforced by the decree nor possession is sought to be taken by virtue of the decree, it is difficult to understand how a claim under Order XXI Rules 97 and 99 or as the case may be, can be made by a third party.
21. It is needless to say that the decree in O.S.No.236 of 2014 is only against Sri.Vijayan Pillai restraining him from using any portion of the plaint A schedule property as parking area. It does not at all either directly or indirectly dealing with the right of respondents 1 and 2. It is significant to notice as already mentioned that the plaintiff does not claim exclusive right, title and possession over plaint A schedule property in O.S.No.236 of 2014.
22. The apprehension expressed by the learned counsel for respondents 1 and 2 that under the guise of the decree in O.S.236 of 2014, the rights of respondents 1 and 2 are sought to be interfered with his quite misplaced. It is difficult to understand how the rights, if any, of respondents 1 and 2 can be affected by the decree obtained against Sri. Vijayan Pillai, unless of course, it is established that respondents 1 and 2 are the persons acting under Sri. Vijayan Pillai. There is no such case for the decree holder also.
23. The right, title and interest over the suit property and the interse disputes that may arise between the plaintiff in O.S. No.236 of 2014 and respondents 1 and 2 before this Court, is quite independent of the decree in O.S.No.236 of 2014. One cannot accept the proposal that by virtue of a decree in O.S.No.236 of 2014, the right, title and interest, if any of respondents 1 and 2 over the plaint property is in any manner affected.
24. If the apprehension is about interfere with the right of respondents 1 and 2, the proper remedy is to initiate independent proceedings, but at any rate a petition under Order XXI Rule 97 and 99 is quite misconceived.
In the result, this petition is allowed and it is held that Ext.P3 application filed by respondents 1 and 2 seeking aid of Order XXI Rules 97 & 99 is not maintainable. The same stands dismissed. There will be no order as to costs.
Scl.
Sd/-
P.BHAVADASAN
JUDGE