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2012 DIGILAW 3240 (MAD)

G. Rajendran v. Sowridoss alias Juline FranceuvaQ

2012-07-24

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 13.04.1998 passed in O.S.No.666 of 1996 and final decree passed thereafter dated 29.10.1998 by the learned Principal District Munsif, this civil revision petition is focussed. 2. A thumbnail sketch of the germane facts necessary for the disposal of this revision would run thus: The learned counsel for the revision petitioner would echo the cride coeur of his client to the effect that his client is in possession and enjoyment of the property found described in the schedule of the plaint in O.S.No.666 of 1996; while so, the plaintiffs and the defendants in that suit got a collusive decree and they are trying to execute such a decree for the purpose of unlawfully dispossessing the revision petitioner, who is a third party to those proceedings. As such, he would try to project and portray that the said judgment emerged in O.S.No.666 of 1996 is a fraudulent one, which is liable to be set aside by this Court, by virtue of its power under Article 227 of the Constitution of India. 3. At this juncture, I would like to recall the following provisions: Order XXI Rules 97, 98 and 102: "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. [98. Orders after adjudication. (1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),- (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. 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." A plain reading of those provisions would clearly show that if at all the revision petitioner herein, the third party is actually in established possession of the property concerned, then straightaway holus bolus he cannot be thrown away; either he could cause obstruction or it is the duty of the person who is executing the decree to file necessary application for removal of obstruction citing the revision petitioner herein as one of the respondents; whereupon it has to be dealt with as per law. With this observation, I would like to dispose of this matter at the S.R. stage itself. No costs. Consequently, connected miscellaneous petition is closed. Office is directed to return the certified copies.