Devu Saibabu v. Chundru Veerragamma (Died)
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR CIVIL REVISION PETITION No. 3036 of 2018 ORDER:
1) Aggrieved by the order, dated 09.05.2018, passed in EA (SR) No.2766 of 2018 in E.P.No.82 of 2013 in O.S.No.766 of 1983, on the file of the Principal Junior Civil Judge, Kakinada, wherein the claim-petition filed by the petitioners under Order 21 Rule 97 of C.P.C., was dismissed, the present Civil Revision Petition came to be filed under Section 115 of C.P.C. 2) The facts in issue are as under:
Originally respondent Nos.1 and 2 filed O.S.No.766 of 1983 seeking delivery of vacant possession of the plaint schedule property. The said suit was decreed on 31.07.1992. Aggrieved by the same, respondent Nos.6 to 9 herein, filed A.S.No.116 of 1992 before the District Court, East Godavari, which was dismissed on 09.02.2000. No second appeal was filed challenging the said order. After dismissal of the first appeal filed by respondent Nos.6 to 9, the decree holders filed E.P.No.82 of 2013 seeking delivery of possession. At that time, the petitioners herein filed the present claim-petition. Against the order of the trial Judge rejecting the claim-petition, the present Civil Revision Petition came to be filed.
3) The ground on which the said claim-petition came to be rejected was that such an application cannot be entertained under Order 21, when admittedly the schedule property in E.P. and the schedule property in claim-petition are different. 4) Learned counsel for the petitioners mainly submits that the trial Court erred in dismissing the E.A. even without numbering it only on the ground that Order XXI cannot be invoked the given fact situation. According to him, the decree holders are trying to eject the petitioners from the property with the help of police aid, which they have purchased from one of the judgment debtors in the year 2012 and they are in occupation of the same since then. He further submits that the schedule property in the claim-petition and the schedule property in E.P. are different and as such the act of the decree holders in trying to interfere with the property in which the claim-petitioners are in possession is improper and hence seeks a declaration from the Court that both the properties are different.
5) The same is opposed by the learned counsel for the decree holders contending that both the properties are one and the same as such the question of entertaining the claimpetition on the ground that both the properties are different is not the purport of Order XXI. He further submits that the
request of the petitioners to declare the properties are different by way of granting injunction was rejected in O.S.No.363 of 2013, which was challenged in appeal, but there is no interim order in their favour. Being unsuccessful in getting an order in appeal, the present claim-petition came to be filed to circumvent the order in E.P.
6) As seen from the record, originally respondent Nos.1 and 2 herein filed O.S.No.766 of 1983 for specific performance of agreement against the respondent Nos.6 to 9 herein. The said suit was decreed in the year 1993, which was challenged in appeal vide A.S.No.116 of 1992, which was also rejected in the year 2000. Thereafter, E.P. came to be filed for execution of the decree passed in O.S.No.766 of 1983, which was filed in the year 1983. Pending E.P., the present claim-petition came to be filed alleging that the schedule in E.P. and the schedule in claim-petition are different. It is said that in spite of the same, the decree holders, with the help of police aid, are trying to eject the revision petitioners from the said property.
But at the same time it is also to be noted that before filing the claim-petition, the petitioners herein, who claimed to have purchased the property from one of the judgment debtors by way of registered sale deed, filed O.S.No.363 of 2013 before the very same Court, seeking injunction against the decree holders herein. Vide judgment dated 19.03.
was dismissed, against which A.S.No.45 of 2018 came to be filed before the Court of III Additional District Judge, East Godavari, Kakinada. In the said A.S., I.A.No.643 of 2018 came to be filed seeking interim injunction. Anticipating an adverse order in I.A.No.643 of 2018, the present claim-petition came to be filed in E.P. alleging that since the properties in both the proceedings are different, the decree holders are trying to grab the property from the petitioners under the said decree. 7) On 24.04.2018, I.A.No.643 of 2018 in A.S.No.45 of 2018, seeking ad-interim injunction restraining the respondents from interfering with the plaint schedule properties by the petitioners pending disposal of the appeal, was dismissed. 8) From the proceedings referred to above, it is clear that originally the petitioners herein filed O.S.No.
363 of 2013 seeking permanent injunction on the ground that both the properties are different. In fact the allegations in the said suit also relate to the interference by the decree holders with regard to the property, which they claim to have purchased from one of the judgment debtors.
" As there is dispute with regard to the title over the plaint schedule property and the defendant is pleading that the plaintiff is not having any right
over the plaint schedule properties and the defendants are the absolute owners of the plaint schedule properties and mere filing of tax receipts and electricity bill could not be helpful to decide the possession of the plaintiffs over the plaint schedule properties when there is a cloud with regard to the title of the property. Hence, in the above circumstances, plaintiffs are not entitled for grant of permanent injunction as they failed to prove their possession over the plaint schedule property."
9) Then an appeal came to be filed but they were not successful in getting any interim order. In the claim-petition the plea appears to be that the properties in both the proceedings are different. The ground on which the said application came to be rejected was that under Order XXI Rule 97 of C.P.C., the Court cannot entertain a claim-petition when properties in both the proceedings are different. It would be useful to extract Order XXI Rule 97 of C.P.C., which reads as under:
" Order XXI Rule 97 of C.P.C.: 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 subrule (1) the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."
10) From a plain reading of Order XXI, Rule 97 of the Code of Civil Procedure, it would be evident that the same becomes applicable only when delivery of possession was going to be affected, obstructed or resisted. An application under Order XXI, Rule 97 of the Code of Civil Procedure can obviously be made by the decree holder only if an occasion therefor as contemplated under the said provision arises. By necessary implication, it excludes filing of any application by the judgment debtor or any other person who alleges that he is not bound by the decree. In terms of Order XXI, Rule 97, C.P.C. when such an application is made, the Court has to adjudicate, as to whether the person resisting or obstructing the delivery of possession of immovable property has been set up by the judgment debtor or not.
11) Admittedly the plea of the claim-petitioners is that properties in the two proceedings are different.
12) Having regard to the fact that the property in E.P. and the claim-petition are different, the petitioners, who are third
parti-es to the proceedings, cannot resist the execution of the decree. Therefore, the impugned order warrants no interference.
13) Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel thereto, Miscellaneous Petitions pending if any, shall stand closed. __________________________ JUSTICE C.PRAVEEN KUMAR 27.07.2018 gkv