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2015 DIGILAW 928 (MAD)

Sudha @ S. Brinda v. M. Sankaran

2015-02-16

K.KALYANASUNDARAM

body2015
Judgment :- 1. This Civil Revision Petition is directed against the order dated 14.10.2014 passed in R.E.A.No.37 of 2014 in R.E.P.No.181 of 2013 in O.S.No.87 of 2007 by the learned II Additional District Judge, Salem. 2. The first respondent herein had instituted the suit in O.S.No.87 of 2007 against the second respondent for specific performance. After contest, the suit was decreed. The appeal filed by the second respondent was dismissed and the same was confirmed by the Honourable Supreme Court. Based on the decree, the first respondent laid an execution petition for execution of the sale deed. The Court itself had executed the sale deed in favour of the first respondent. 3. Thereafter, the first respondent filed R.E.P.No.181 of 2013 seeking delivery of possession. In the execution petition, the judgment debtor filed R.E.A.No.3 of 2013 under Section 47 of the Code of Civil Procedure. The Executing Court dismissed the application which was confirmed by this Court in C.R.P.(NPD) Nos.2184 and 2185 of 2014 dated 04.08.2014. 4. Subsequently, the petitioners filed R.E.A.No.20 of 2014 under Order 21 Rule 97 and Section 151 of the Code of Civil Procedure contending that the judgment debtor has 1/4th share in the suit property and the remaining 3/4th share belongs to them. 5. When the said application is pending, the petitioners filed R.E.A.No.37 of 2014 under Order 21 Rule 29 and Section 151 of the Code of Civil Procedure seeking stay of the execution petition. The Executing Court dismissed the application on 14.10.2014. Aggrieved by the order, the present Civil Revision Petition is filed. 6. Ms.P.Veena Suresh, learned counsel for the petitioners submitted that the petitioners have claimed 3/4th share in the suit property and when the application filed under Order 21 Rule 97 and Section 151 of the Code of Civil Procedure is pending adjudication, the Executing Court cannot proceed with the execution of the decree. 7. The learned counsel for the petitioners has relied on the judgment of the Supreme Court in SHREENATH AND ANOTHER VS. RAJESH AND OTHERS [ 1998 (4) SCC 543 ] wherein the Supreme Court has held as follows: “15. Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the Madhya Pradesh High Court is a situation different from what is covered by Rule 97. RAJESH AND OTHERS [ 1998 (4) SCC 543 ] wherein the Supreme Court has held as follows: “15. Rule 100 of the old law, as referred in the aforesaid Full Bench decision of the Madhya Pradesh High Court is a situation different from what is covered by Rule 97. Under Rule 100 (old law) and Order 99, the new law covers cases where persons other than the judgment – debtor is dispossessed of immovable property by the decree – holder, of course, such cases are also covered to be decided by the executing court. But this will not defeat the right of such a person to get his objection decided under Rule 97 which is a stage prior to his dispossession or a case where he is in possession. In other words, when such person is in possession the adjudication to be under Rule 97 and in case dispossessed adjudication to be under Rule 100 (old law) and Rule 99 under the new law. Thus a person holding possession of an immovable property on his own right can object in the execution proceeding under Order 21 Rule 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such a person can object and get adjudication when he is sought to be dispossessed by the decree – holder. For all the aforesaid reasons, we do not find the Full Bench in Usha Jain correctly decided the law.” 8. Per contra, Mr.R.Agilesh, learned counsel for the respondents submitted that the defendant has admitted that the suit property is the self acquired property and after he lost his case, the present petitioners are initiating frivolous litigation contending that the suit property is a joint family property. The learned counsel has further submitted that the second respondent judgment debtor has purchased the property on his own and the petitioners cannot claim any right over the suit property. 9. It is seen that the first respondent has filed the execution petition seeking delivery of possession of the suit property. In the execution proceedings, the petitioners have filed the application under Order 21 Rule 97 and Section 151 of the Code of Civil Procedure obstructing execution of the decree. 9. It is seen that the first respondent has filed the execution petition seeking delivery of possession of the suit property. In the execution proceedings, the petitioners have filed the application under Order 21 Rule 97 and Section 151 of the Code of Civil Procedure obstructing execution of the decree. The Supreme Court has repeatedly held that if an application is filed under Order 21 Rule 97 of the Code of Civil Procedure, the Executing Court has to adjudicate the rights of the parties. 10. It is settled law that even the application filed by the third parties has to be adjudicated by the Executing Court. However, in the present case on hand, after dismissing the application in R.E.A.No.3 of 2013 filed by the judgment debtor under Section 47 of the Code of Civil Procedure, the Executing Court has ordered delivery of possession on 14.03.2014. The petitioners filed R.E.A.No.20 of 2014 only on 17.03.2014. In view of the judgment of the Supreme Court (cited supra) the Executing Court has to adjudicate the application filed under Order 21 Rule 97 of the Code of Civil Procedure before ordering delivery of possession of the suit property. The petitioners filed R.E.A.No.37 of 2014 seeking stay of all further proceedings in R.E.P.No.181 of 2013 till finality is reached in O.S.No.43 of 2014. It is represented that the suit in O.S.No.43 of 2014 was filed for partition and separate possession. In my view, the Executing Court has rightly dismissed the application in R.E.A.No.37 of 2014 holding that the application was filed only to drag on the proceedings. Hence, I do not find any merit in this Civil Revision Petition. 11. In the result, this Civil Revision Petition is dismissed. Since the petitioners have already filed R.E.A.No.20 of 2014 under Order 21 Rule 97 of the Code of Civil Procedure, the Executing Court shall dispose of the same, on merits and in accordance with law, within a period of two months from the date of receipt of a copy of this order. Till then, all further proceedings in the execution proceedings shall be kept in abeyance. No costs. Consequently, connected miscellaneous petition is closed