Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 2943 (MAD)

Savithiri v. Manimehalai

2014-08-27

S.VIMALA

body2014
Judgment The decree-holders/plaintiffs in O.S.No.117 of 2000 have filed a Execution Petition in E.P.No.102 of 2002 against the defendants/respondents, namely, Bose, Mohan and Devendran. 1.1. The suit was filed seeking the relief of partition of the suit property, claiming 3/10 and 2/10 shares, on the ground that the first defendant, who is the plaintiff's brother, has denied his share in the suit property. Preliminary decree was passed on 27.02.2011. 2. The petitioner in E.A.No.241 of 2002 has purchased the remaining share from the first defendant (Bose) by virtue of the sale deed, dated 22.02.2000. But, she was not impleaded in the suit for partition. 2.1. After purchase of the property, the petitioner in E.A.No.241 of 2002 has filed an application to set-aside the preliminary decree and also to implead herself as a party respondent in O.S.No.117 of 2000. That application was dismissed. 2.2. On 11.09.2002, final decree was passed, after appointment of Commissioner. 2.3. The plaintiffs have filed a petition in E.P.No.102 of 2002 seeking the relief of possession. 2.4. The third party/purchaser has filed an Obstruction Petition, under Order 21 Rule 97 CPC, in E.A.No.241 of 2002 in E.P.No.102 of 2002 in O.S.No.117 of 2000, and it was dismissed. While dismissing the same, the Court, gave a finding that the petitioner has to work out her remedy only against her vendor; the Court also took note of the fact that the application to implead herself in the suit itself was dismissed by the trial court. 2.5. Challenging the dismissal, the third party/purchaser has filed CMA No.10 of 2006 and it was allowed, thereby the order passed in E.A.No.241 of 2002, dated 15.03.2004, dismissing the petition under Order 21 Rule 97 of the CPC, came to be set-aside. 2.6. Challenging the order passed in CMA No.10 of 2006, this Civil Revision Petition has been filed. 3. The main grievance of the learned counsel for the Revision petitioners is that, the petition under Order 21 Rule 97 CPC is not maintainable, by the objector/third party. It is submitted that, when the application filed by the third party/purchaser to set-aside the preliminary decree has been dismissed, no indulgence can be shown to the respondent herein. 4. A perusal of the order passed, during execution, would go to show that, on 01.02.2006, delivery effected has been recorded and Execution Petition has been terminated. 5. It is submitted that, when the application filed by the third party/purchaser to set-aside the preliminary decree has been dismissed, no indulgence can be shown to the respondent herein. 4. A perusal of the order passed, during execution, would go to show that, on 01.02.2006, delivery effected has been recorded and Execution Petition has been terminated. 5. The learned counsel for the Revision Petitioners contended that the respondent herein is a person claiming title under the judgment-debtor and therefore, she cannot be dignified with the title of an obstructor within the meaning of Order 21 Rule 97 CPC and in support of the proposition, the decision reported in 2012-5-L.W. 640 (A.R. Sankaran v. T.Mohammed Arif Akthar and others) is relied upon, where-under it has been held as follows:- "9. A plain reading of those decisions would leave no doubt in the mind of this Court that a person, who is claiming right under the judgment debtor, cannot be dignified with the title of an obstructor within the meaning of Order 21 Rule 97 of C.P.C. If at all the obstructor is having independent right de hors the rights of the judgment debtors, then only the Court is enjoined to have a roving enquiry as it is done in a suit. But on the other hand, if the pleadings would disclose that the so called obstructor is only claiming right under any one of the judgment debtors then he should be treated as the one beyond the purview of Order 21 Rule 97 of C.P.C. and his obstruction should be ignored." 6. This decision squarely applies to the facts of this case. The obstructor/respondent herein is only a person claiming title under one of the judgment-debtors. Therefore, the objection is beyond the purview of Order 21 Rule 97 CPC and the obstruction should be ignored. Therefore, the Executing Court is right in dismissing the Obstruction Petition and the first appellate court is not right in allowing the petition. Therefore, the order passed in CMA No.10 of 2006 is set-aside and the order passed in E.A.No.241 of 2002 in E.P.No.102 of 2002 in O.S.No.117 of 2000 is restored to file. 7. In the result, this Civil Revision Petition is allowed. No costs. Consequently, the connected MPs are closed.