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2012 DIGILAW 2858 (MAD)

C. Raja v. A. N. Arul

2012-07-06

G.RAJASURIA

body2012
Judgment :- 1. Heard both sides. 2. Animadverting upon the order dated 13.12.2010 passed by the learned Subordinate Judge, Namakkal in R.E.A.No.97 of 2006 in R.E.P.No.102 of 2005, this civil revision petition is focussed. 3. A thumbnail sketch of the germane facts, in a few broad strokes, can be encapsulated thus: The revision petitioners after meeting with their waterloo in their application under Order 21 Rule 97 of CPC have filed this revision. 4. When the matter has come up for hearing I raised the point as to how this revision would lie when appeal remedy is contemplated in view of the fact that any order passed under Order 21 Rule 97 of CPC should be taken as a decree. Whereupon, the learned counsel for the revision petitioners would submit that an application under Section 47 of the Code of Civil Procedure was invoked by the revision petitioners and as against the order passed under Section 47 application, only revision would lie. 5. In this connection, the learned counsel for the first respondent would cite the following decisions of this court. 1. 1996(II) CTC 243 [Janaki Ammal vs. Ganapathi Konar and two others] 2. 2011(2) CTC 149 [Thangeswari and 2 others vs. Thirumalvalavan and 8 others] 6.) So far as R2 is concerned he remained exparte in the lower court and here no notice to R2 is necessary. 7.) It is therefore just and necessary to extract here under Order 21 Rule 97 as well as Rules 102 and 103 of the Code of Civil Procedure. "Order XXI - Execution of Decrees and orders Resistance to delivery of possession to decree-holder or purchaser Rule 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] “Substituted by Act 104 of 1976. “[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] “Substituted by Act 104 of 1976. Rule 102 - Rules not applicable to transferee pendente lite - Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. Explanation - In this rule, "transfer" includes a transfer by operation of law. Rule 103 - Orders to be treated as decrees - Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree." It is crystal clear that the impugned order should be taken only as a decree and as against the decree only appeal would lie. 6. Hence, this civil revision petition is dismissed with the observation that the revision petitioners are at liberty to file necessary appeal subject to limitation. However, in the application to be filed to get the delay condoned in filing the appeal, they are at liberty to get excluded the time taken to prosecute this revision before this court. No costs. Consequently, the connected miscellaneous petition is closed.