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2021 DIGILAW 940 (MAD)

S. Vasanthi v. K. Munuswamy

2021-03-17

V.BHAVANI SUBBAROYAN

body2021
JUDGMENT : (Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 01.12.2018 passed by the Subordinate Court, Dharmapuri in E.A.No.50 of 2016 in E.P.No.7 of 2016 in O.S.No.261 of 2014.) 1. This Civil Revision Petition has been filed against the fair and decreetal order dated 01.12.2018 passed in E.A.No.50 of 2016 in E.P.No.7 of 2016 in O.S.No.261 of 2014 on the file of Subordinate Court, Dharmapuri. 2. The suit was filed by the 1st respondent/plaintiff to execute a sale deed in favour of him by the 2nd respondent/defendant and in case of failure of the defendant to execute the sale deed in favour of the plaintiff, to execute the same through the Court on behalf of the defendant. 3. The defendant was set exparte before the Court below and the Court below by decree and order dated 13.01.2015 had allowed the suit in favour of the 1st respondent/plaintiff as prayed for. The decree holder had filed R.E.P.No.7 of 2016 praying for execution of the decree and judgment. When the execution petition was pending, an obstruction petition in R.E.A.No.50 of 2016 was filed by the petitioners herein under Order 21 Rule 97 stating that the suit schedule property originally belonged to their father Narasimhan and the same was settled in favour of them by way of a registered Settlement Deed dated 28.08.2014 in Doc.No.3229 of 2014. 4. The Revision Petitioners state that they are the joint owners of the properties in S.No.21/2C measuring Acre 0.13 ½ cents and S.No.21/1D measuring Acre 1.12 ½ cents as per Patta No.745 and in S.No.21/1C measuring Acre 1.07 ½ cents as per Patta No.1996 totally admeasuring Acre 2.33 ½ cents situated in Unguranahalli Village, Dharmapuri Taluk, Dharmapuri District. The 1st respondent/plaintiff had filed O.S.No.261 of 2014 for specific performance against the 2nd respondent/defendant based on the bogus Sale Agreement falsely created among themselves in a collusive manner for the purpose of filing a suit to grab a portion of the petitioners’ property. Since the 2nd respondent did not appear before the Court, an exparte order was obtained behind the petitioners. Since the 2nd respondent did not appear before the Court, an exparte order was obtained behind the petitioners. Thereafter, the 1st respondent had filed Execution Petition in E.P.No.7 of 2016 against the 2nd respondent and the 2nd respondent did not appear before the Court which led to execute a sale deed in favour of the 1st respondent/plaintiff by the Court Officer on 28.10. 2015 which was registered as Doc.No.3785 of 2015 on the file of Joint-II Sub Registrar, Dharmapuri. Based on the sale deed, an Agreement for sale was entered into between the 1st respondent and one Govindasami on 30.03.2016 which was registered as Doc.No.1246 of 2016 at the same office. The petitioners herein came to know about the same only on 01.02.2016 and immediately they filed a petition in R.E.A.No.50 of 2016 in the above R.E.P.No.7 of 2016 under Order 21 Rule 97 and 101 read with Section 151 of CPC before the Sub Court, Dharmapuri. Obviously, the 1st respondent had withdrawn the said E.P proceedings and in view of the same the petitioners’ application in E.A.No.50 of 2016 was dismissed as withdrawn by the Execution Court on 01.12.2018 and the order of the Executing Court is perverse and against which they have filed this petition before this Court. 5. Heard the learned counsel for the petitioners and the learned counsel for the 1st respondent, and perused the materials available on record. 6. On perusal of the records, it is seen that the present case by the revision petitioners is that one Munuswamy filed O.S.No.261 of 2014 against one Rajkumar before the Sub Court, Dharmapuri, for specific performance by raising ground that the suit schedule property originally belonged to the said Rajkumar. The plaintiff Munuswamy, 1st respondent herein, had entered into an agreement with the said Rajkumar, 2nd respondent herein, for sale of suit schedule property for the agreed amount of Rs.1,05,000/- based on the written agreement dated 18.06.2012. On which day, it is pleaded that the said Munuswamy has parted with Rs.1,00,000/- to the defendant Rajkumar and what was remaining is only Rs.5,000/- and despite receiving Rs.1,00,000/- from the plaintiff Munuswamy, the defendant had not executed any sale deed in favour of the plaintiff, which made the plaintiff to file a suit for specific performance directing the defendant Rajkumar to execute the sale deed in favour of him after receiving the balance sale consideration of Rs.5,000/-. 7. 7. The suit was decreed exparte on 13.01.2015 in favour of Munuswamy as the said Rajkumar remained absent and was set exparte. That apart, it is seen that the said Munuswamy as a decree holder filed a petition in R.E.P.No.7 of 2016 in O.S.No.261 of 2014 for execution of the decree. At this point of time, when the execution petition was pending, the Revision Petitioners herein had filed an obstruction petition under Order 21 Rule 97. The obstructors claimed that the suit property was originally belonged to their father Narasimhan and subsequently the entire suit schedule property was settled in favour of the obstructors by way of a registered Settlement Deed dated 28.08.2014 in Doc.No.3229 of 2014. The respondents herein are strangers to the property and they are trying to grab the obstructors property by creating a bogus document between them and filed O.S.No.261 of 2014, in which, the 2nd respondent who was set exparte wantonly stood exparte and the plaintiff Munuswamy had obtained an exparte decree in his favour and thereafter filed E.P.No.7 of 2016. Only on the above said grounds, the Revision Petitioners filed R.E.A.No.50 of 2016 before the Sub Court, Dharmapuri and prayed to set aside the execution petition and further sought to declare the right over the suit schedule property which was inherited by them by way of Settlement Deed dated 28.08.2014. When the said case was posted for hearing on several dates, it is seen from the records that the respondent counsel had withdrawn the E.P proceedings by filing a memo and as a result the E.P.No.50 of 2016 was dismissed as withdrawn. As against which, the present Revision Petition has been filed. 8. Order 21 Rule 97 C.P.C reads as follows : Rule 97 Order XXI of Code of Civil Procedure 1908 “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 the upon the application in accordance with the provisions herein contained. 9. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate the upon the application in accordance with the provisions herein contained. 9. On going through the above provision, it is clear that the Petition filed by the Revision Petitioners by way of an obstruction to the application moved by the decree holder was necessary to be one falling within the scope and ambit of Order 21 Rule 97. It is important to note that the resistance or obstruction has to be read with the subsequent provision contained in the said order. An application under Order 21 Rule 97 moved by the decree holder who complains about the obstruction offered by any person to the decree holder in his attempt at obtaining possession of the property and who wants such obstruction to be removed which otherwise is an impediment in his way, a dispute arises between the decree holder/applicant under Order 21 Rule 97 and on one hand such obstruction by the resisting party on the other side to whom summons has to be issued by the Court as per Form 40 Schedule 2 CPC Appendix E. The procedure for adjudicating such dispute has to be culled out from the remaining succeeding rules of Order 21. 10. Order 21 Rule 97 deals with the stage which is prior to the actual execution of the decree for possession, wherein, the grievance of the obstructioner has to be adjudicated before actual delivery of possession to the decree holder. While Order 21 Rule 99, the subsequent provision to 97, deals with the execution proceedings where a stranger claiming any right, title and interest in the decreetal property might have got actually disposes and claim restoration of possession and adjudication of the independent right, title and interest, irrespective of the interest of the Judgment debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are contemplated under Order 21. 11. In the present case on hand, on perusal of the pleadings in R.E.A.No.50 of 2016 filed by the present revision petitioners, the respondents herein who claims to be a Judgment debtor and decree holder are exactly strangers to the property. 11. In the present case on hand, on perusal of the pleadings in R.E.A.No.50 of 2016 filed by the present revision petitioners, the respondents herein who claims to be a Judgment debtor and decree holder are exactly strangers to the property. However, to grab the suit property behind the back of the revision petitioners, a pseudo suit has been filed that as if there was a dispute between the 1st and 2nd respondents and the 1st respondent had obtained a decree against the 2nd respondent who was set exparte in the suit as well as in the E.P. would clearly prove that the way in which the execution petition is also withdrawn when the obstruction petition was filed by the revision petitioners herein. 12. The Court below ought not to have permitted the withdrawal of the execution petition as it is clear from the provision of Order 21 Rule 97 that the Trial Court on receipt of the petition from the obstructor under Order 21 Rule 97 has to deal with the proceeding as per provisions of Order 21 Rule 97 also which would remain as sole remedy to the concerned parties to have the grievance once for all finally resolved in the execution proceeding itself. That apart, Order 21 Rule 97 CPC clearly envisages that any person even including the Judgment debtor irrespective whether he claims derivative title from the Judgment debtor or set up his own right, title or interest, irrespective of the Judgment debtor and he can resist the execution of the decree. The Court is empowered to conduct an enquiry whether the obstruction petition filed by the said petitioner was legal or not. Even third party not connected to the suit proceedings can initiate a petition under Order 21 Rule 97 CPC. 13. Under the above stated facts and circumstances, this Court is of the view that the E.P. petition ought not to have been permitted to be withdrawn. The permission accorded to withdraw R.E.P.No.7 of 2016 consequently makes R.E.A.No.50 of 2016 infructuous, thereby the decree obtained by the 1st respondent herein as against the 2nd respondent with regard to the suit property which is owned by the revision petitioners continues to be there. Unless the petition filed by the revision petitioners under Order 21 Rule 97 fully determined, this dispute cannot be set right. Unless the petition filed by the revision petitioners under Order 21 Rule 97 fully determined, this dispute cannot be set right. Hence, this Court is of the view that the order passed by the Sub Court dated 01.12.2018 in R.E.A.No.50 of 2016 in R.E.P.No.7 of 2016 has to be set aside along with the order dated 01.12.2018 made in R.E.P.No.7 of 2016 in R.E.P.No.48 of 2015 in O.S.No.261 of 2014. 14. Accordingly, the orders dated 01.12.2018 passed by the Sub Court, Dharmapuri in R.E.P.No.7 of 2016 and R.E.A.No.50 of 2016 are set aside and it is made clear that the Sub Court would decide the application filed by the Civil Revision Petitioners on merits without being influenced by this order. It is also made clear that the application should be decided as expeditiously as possible as the suit is of the year 2014. 15. In the result, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.