M. Chockalingam And Others v. Veerabadra Chettiar And Others

K.B.N Singh, C.J

1. This civil revision petition is posted before this Court since the scope of O. 21, R. 101 of the C.P.C, as amended by Central Act 104 of 1976 arises for consideration for the first time in this Court.

2. The decree-holders-petitioners in this revision obtained a decree in O.S 3328 of 1966 on the file of the City Civil Court, Madras, for recovery of possession against Appa Rao and others (defendants). They took the decree in execution thereafter. In the course of the execution proceedings, the respondents herein obstructed delivery of possession and the decree-holders filed an application E.A 4137 of 1966 under O. 21, R. 97, C.P.C, complaining of obstruction and praying for removal of the obstruction. The respondents herein who are the obstructors, appeared in the said proceedings and the executing court decided the question in a summary manner as was the position before the amendment of the provisions of the C.P.C, by the Central Act 104 of 1976, drastically changing the provisions of O. 21, R. 97, C.P.C, in this regard. The executing court came to the conclusion that the obstruction was not without lawful cause and dismissed the application filed by the decree-holders. The decree-holders preferred an appeal against this order. The appellate Court realising the change in the law that such applications have not to be summarily dealt with but to try the same as a suit, offered to the parties to remand the matter to be tried as a suit. But it seems the parties were equally in confusion and without realising the import of the provisions, they failed to avail the opportunity afforded to them. Then the lower appellate court refused to send the matter to be tried a fresh, on request by the appellant as the obstructors objected to that course being adopted, that is to say, remanding the matter for giving opportunity to the parties to lead fresh evidence.

3. The amended provision of O. 21, R. 101 lays down as follows—

“101. Question to be determined All questions (including questions relating to the right, title or interest in the property) arising between the parties to proceeding on an application under R. 97 or R. 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary, contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.”

From the aforesaid provision it is apparent that the question to be determined in a proceeding under R. 97 or R. 99 has to be decided by the executing court and not by a separate suit, that is to say, a separate suit in such matters is barred. O. 21, R. 103 is also relevant and it runs as follows—

“103. Orders to be treated as decrees: Where any application has been adjudicated upon under R. 98 or R. 100, the order made there on shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.”

Such an order has to be conclusive with regard to the rights of the parties, and has the force of a decree and is subject to an appeal, as if it were a decree.

4. The learned Judge also seems to be in confusion regarding the true import of these provisions. He has stated in para 11 of his judgment as follows—

“In such an instance the claim of the decree-holder for removal of obstruction will have to be disallowed and his petition for that relief will have to be dismissed, leaving it open to the decree-holder either to prefer an appeal questioning the correctness of the order within the scope abovesaid or to file a suit on title so as to evict the obstructor.”

It is doubtful whether these observations of the lower court correctly represent the legal position in this regard.

5. After hearing the learned counsel for the parties, we have no doubt in our mind that the courts below have failed to exercise the jurisdiction vested in it in understanding the full import of O. 21, Rr. 98 to 103, C.P.C, in not trying the whole matter as a suit. The orders of the executing court as also of the appellate court are set aside and the matter is remanded to the executing court for disposal in accordance with law in the light of the above observations. The trial court will dispose of the matter expeditiously.

6. Accordingly the civil revision petition is allowed. There will be no order as to costs.

VCS.