Kerala High Court

Moideen vs Sri.Rajan Muthan on 23 April, 2024

Author: V.G.Arun

Bench: V.G.Arun

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                THE HONOURABLE MR.JUSTICE V.G.ARUN
   TUESDAY, THE 23RD DAY OF APRIL 2024 / 3RD VAISAKHA, 1946
                        CRP NO. 492 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 30.06.2017 IN OS NO.179 OF
2005 OF MUNSIFF COURT, OTTAPPALAM
REVISION PETITIONER/S:

            MOIDEEN
            AGED 67 YEARS
            AGED 67 YEARS,SON OF KORAKULAM VEETTIL
            MOIDU,KORAMKULAM HOUSE,ARIYUR THEKKUMMURI
            DESOM,OTTAPALAM AMSOM OTTAPALAM TALUK,PALAKKAD
            DISTRICT.
            BY ADVS.
            SRI.K.RAMAKUMAR (SR.)
            SMT.ASHA BABU
            SMT.R.S.ASWINI SANKAR
            SRI.S.M.PRASANTH
            SRI.T.RAMPRASAD UNNI


RESPONDENT/S:

    1       OMANADAS
            AGED 55 YEARS,D/O.LATE MENAKATH VEETTIL RUGMINI
            AMMA,ARIYURTHEKKUMURI DESOM,OTTAPALAM TALUK,PALAKKAD
            DISTRICT.
    2       SMT.REMADEVI
            AGED 51 YEARS,D/O.MENAKATH VEETTIL JANAKI
            AMMA,ARIYURTHEKKUMURI DESOM,OTTAPALAM TALUK,PALAKKAD
            DISTRICT.
            BY ADVS.
            SRI.SANTHEEP ANKARATH
            SRI.M.MANOJKUMAR CHELAKKADAN


        THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
16.02.2024, ALONG WITH CRP.627/2017, THE COURT ON       23.04.2024
DELIVERED THE FOLLOWING:
 CRP Nos.492 and 627 of 2017

                                -2-



            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
               THE HONOURABLE MR.JUSTICE V.G.ARUN
    TUESDAY, THE 23RD DAY OF APRIL 2024 / 3RD VAISAKHA, 1946
                        CRP NO. 627 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 30.06.2017 IN OS NO.179 OF
2005 OF MUNSIFF COURT, OTTAPPALAM
REVISION PETITIONER/S:
          MOIDEEN
          AGED 67 YEARS
          AGED 67 YEARS, SON OF KORAKULAM VEETTIL MOIDU,
          KORAMKULAM HOUSE, ARIYUR THEKKUMMURI DESOM,
          OTTAPALAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT.
          BY ADVS.
          SRI.T.RAMPRASAD UNNI
          SMT.ASHA BABU
          SMT.R.S.ASWINI SANKAR
          SRI.S.M.PRASANTH

RESPONDENT/S:
     1    SRI.RAJAN MUTHAN
          SON OF MADHAVA MUTHAN, KANJANA NIVAS, ARIYUR
          THEKKUMMURI AMSOM DESOM, OTTAPALAM TALUK, PALAKKAD
          DISTRICT, PIN-678583.
     2    MR.ANAND
          SON OF RAMADEVI, SOWHRIDA HOUSE, HOUSE NO.103E,
          SEENATH JUNCTION, OONAMAVU, KUZHITHADA, ALUVA-
          683101.
     3    SMT.OMANADAS
          AGED 56 YEARS, W/O.KRISHNADAS, KRISHNAPRABHA HOUSE,
          THOTTAKKARA, OTTAPALAM DESOM, OTTAPALAM TALUK,
          PALAKKAD DISTRICT, PIN-679102.
          BY ADVS.
          SRI.ARUN MATHEW VADAKKAN
          SRI.SANTHEEP ANKARATH

      THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
16.02.2024, ALONG WITH CRP.492/2017, THE COURT ON      23.04.2024
DELIVERED THE FOLLOWING:
 CRP Nos.492 and 627 of 2017

                                 -3-



                              ORDER

Dated this the 23rd day of April, 2024

The challenge in these revision petitions is

against the common order dismissing E.A.No.390 of

2008 in E.P.No.123 of 2005 in O.S.No.212 of 2004

and E.A.No.425 of 2011 in E.P.No.64 of 2009 in

O.S.No.179 of 2005, filed by the revision

petitioner under Order XXI Rules 97 & 99 and

Order XXI Rule 58 of the Code of Civil Procedure.

The essential facts, with the parties referred to

as described in CRP No.492 of 2017, are as under;

The petition schedule property belonged to

one Ramadevi/second respondent and her two sons.

The petitioner entered into an agreement for sale

with the owners of the property on 02.01.2006.

Out of the total sale consideration of

Rs.4,00,000/-, the petitioner paid Rs.2,00,000/-

on the date of agreement and got possession of CRP Nos.492 and 627 of 2017

the petition schedule property. As the owners

did not execute the sale deed in terms of the

agreement, the petitioner filed O.S.No.30 of 2004

before the Sub Court, Ottapalam seeking specific

performance of the agreement. Pending the suit,

the parties settled their dispute and the suit

was decreed on 21.05.2005 in terms of the

compromise. Thereafter the petitioner filed

E.P.No.8 of 2006 for getting the decree enforced

and got the sale deed (document No.1372 of 2007

of Ottapalam SRO) registered in his name. The

petitioner thereafter got the property mutated to

his name and was paying land tax. But, when the

petitioner approached the Municipality for

changing the ownership of the residential

building in the property to his name, it was

informed that the building stands mutated in the

name of the first respondent. Thereupon, the

petitioner made enquiries and came to understand

a collusive suit (O.S.No.212 of 2004) had been CRP Nos.492 and 627 of 2017

filed by the first respondent against the second

respondent and the Munsiff Court, Ottapalam had

decreed that suit on 11.10.2004. Based on that

decree, the first respondent filed E.P.No.123 of

2005, purchased the petition schedule property in

auction and got delivery of the property on

05.08.2006. Faced with such a situation and left

with no other alternative, the petitioner filed

the execution applications for getting the sale

in favour of the first respondent set aside and

for removing the obstruction to his enjoyment of

the petition schedule property. The learned

Munsiff dismissed the applications finding them

to be not maintainable.

2. Heard Senior Advocate K.Ramakumar for

the revision petitioner and Advocate Santheep

Ankarath for the first respondent.

3. Learned Senior Counsel contended that

the court below had grossly erred in holding the

execution applications to be not maintainable. CRP Nos.492 and 627 of 2017

The court below proceeded on the mistaken

impression that actual physical possession is

necessary for making an application under Order

XXI Rule 99. Relying on the Division Bench

decision of this Court in Saviour v. E.V.Mathai

and Others [2008 (1) KHC 849], it is contended

that an aggrieved third person need not wait till

his actual physical dispossession, for submitting

an application under Order XXI Rule 99. The

further contention is that the only remedy

available to the petitioner is to file execution

applications since no separate suit is

maintainable, as held by the Full Bench of this

Court in Danish Varghese v. Jancy Danish [2021

(1) KLT 631]. According to the Senior Counsel,

the question of limitation does not arise since

execution applications were filed immediately

after the petitioner came to know about the

decree passed in O.S.No.212 of 2004 and the so- CRP Nos.492 and 627 of 2017

called delivery of the property to the first

respondent.

4. Learned Counsel for the first respondent

contended that the civil revision petitions are

not maintainable in view of Order XXI Rule 103,

as per which the order made on any application

adjudicated upon under Rule 98 or Rule 100 shall

have the same force and be subject to the same

conditions as to an appeal or otherwise, as if it

were a decree. As such, only an appeal is

maintainable against the order rejecting the

application under Order XXI Rule 97 and 99.

Moreover, the petitioner was well aware of the

suit (O.S.No.212 of 2004) filed by the first

respondent and had even filed an application for

getting himself impleaded in that suit. In such

circumstances, the order of the execution court,

finding the applications to be barred by

limitation warrants no interference.

5. In response to the contention regarding CRP Nos.492 and 627 of 2017

maintainability, learned Senior Counsel

submitted that Order XXI Rule 103 would apply

only if the impugned order is passed after

adjudication of the issues involved. The

execution applications in the case at hand were

dismissed without adjudication, but on the ground

of limitation. Hence, the order can be challenged

in revision.

6. One of the applications, E.A.No.425 of

2011 in E.P.No.64 of 2009 in O.S.No.179 of 2005,

was filed by the petitioner under Order XXI Rule

58 of CPC. In this context, it is pertinent to

note that Rule 58 of Order XXI deals with

adjudication of claims and objections to

attachment of property. The Proviso to Rule 58(1)

makes it clear that a claim or objection under

that provision shall not be entertained if it is

made after sale of the attached property. In the

case at hand, the property, with respect to which

the claim is raised, was sold in auction to the CRP Nos.492 and 627 of 2017

first respondent on 24.10.2005, the sale

confirmed on 09.01.2006 and the property

delivered through Amin on 05.08.2006. The claim

petition under Order XXI Rule 58 was filed only

in the year 2011 and was hence not maintainable.

Hence, the order passed in that execution

application warrants no interference.

7. The other execution application

E.A.No.390 of 2008 in E.P.No.123 of 2005 in

O.S.No.212 of 2024 is filed under Order XXI Rules

97 and 99. Here, it is to be noted that Order XXI

Rule 97 empowers the decree holder to make an

application against the resistance or obstruction

in obtaining possession of immovable property by

any person. On the other hand, an application

under Order XXI Rule 99 can be filed only by a

person other than the judgment debtor

dispossessed of immovable property by the holder

of a decree. It is therefore clear that a person

cannot simultaneously seek removal of obstruction CRP Nos.492 and 627 of 2017

or resistance to the enjoyment of his property

and reinstatement to the very same property on

the premise that he was illegally dispossessed.

8. The petitioner's contention that he was

not aware of the decree passed in O.S.No.212 of

2004 and delivery of the property in execution of

that decree, was rightly rejected by the court

below, finding that the petitioner had filed an

application for impleadment in O.S.No.212 of

2004. Therefore, the finding that the

applications are barred by limitation is liable

to be affirmed. It is also an undisputed fact

that the petition schedule property is lying

adjacent to the petitioner's residence. Hence,

the petitioner cannot feign ignorance about the

delivery of the property and the changes made to

the property by the first respondent.

9. As regards the contention raised in

reply to the objection as to maintainability of

the revision petition, no doubt Order XXI Rule CRP Nos.492 and 627 of 2017

103 would come into play only if the impugned

order was passed after adjudication of the

application under Rule 98 or Rule 100. In legal

parlance, the term 'adjudication' implies the

hearing by a court, after notice, of the issues

involved. It contemplates consideration and

decision on the claims of all parties to the

litigation. The true meaning of the word

'adjudication' in the context of Order XXI Rule

103, was considered by this Court in Arjunan

Achary v. Thankamma [1988 KHC 585]. Paragraphs 3

and 4 of the judgment being contextually relevant

are extracted hereunder;

"3. The scheme of O.21 R.97, 98 and 101 would show that a holder of a decree for possession of immovable property may make an application to the Court executing the decree if he has any complaint of any resistance offered by any stranger to the execution of the decree or when there is any obstruction from any other quarter. In that application the CRP Nos.492 and 627 of 2017

court has got jurisdiction to decide all questions including the question relating to right, title or interest in the property arising between the parties to the proceeding, or their representatives and which are relevant for adjudication of the application. After the adjudication under O.21 R.101, the court has to pass under O.21 R.98 either (a) making an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application or (b) pass such order as, in the circumstances of the case, it may deem fit. Thus the final order in a petition for removal of obstruction is what is contemplated under O.21 R.98. The proceedings initiated under O.21 R.97 are required to be enquired into under O.21 R.101 and disposed of under O.21 R.98. The adjudicatory process under O.21 R.101 contemplates an application of the mind, a consideration of the claim on the merits and a conclusion based on reasons. Even then, there may be cases where the court is constrained CRP Nos.492 and 627 of 2017

to reject the application without any adjudication at all. Where no adjudication is required in any case, and the application has to be dismissed without any investigation, still the court has the duty to pass final orders under O.21 R.98. It is the order under O.21 R.98 that disposes of the application under O.21 R.97. R.103 provides an appeal against that order. If this is the policy and purpose of the provisions, as I understand it, it follows that the order passed by the court in this case, dismissing the application for removing obstruction under O.21 R.97 was an order under O.21 R.98, appealable under O.21 R.103.

4. The word 'adjudication' mentioned in O.21 R.103 has to be understood in the context, in which it is made for, the word 'adjudication' occurs in O.21 R.101 which does not provide for appeal and the word 'adjudication' does not occur in O.21 R.98 which provides for an appeal. The expression 'adjudication' and 'determination' thus have to be understood in their context, namely, that it is the determination CRP Nos.492 and 627 of 2017

contemplated under O.21 R.98, which is referred to in O.21 R.103 as the "adjudication" for the purposes of the appeal. The dismissal of an application under O21 R.97 in so far as the decree holder is concerned. is an "adjudication" so far as his right to continue the execution petition. It is an "adjudication" so far as the obstructor is concerned for, his obstruction can no longer be removed by the decree holder. In this sense also, the order dismissing the application for removing resistance of obstruction is well within the ambit of O.21 R.103. The court below was, therefore, right in holding that the appeal was maintainable and in exercising its appellate power."

Later, in M/s.Kottachery Sarvothama Srinivasa

Shenoy and Bros. v. Kodoth Krishnan Nair [2009(2)

KHC 323], it was clarified that, adjudication of

rights does not require the court to go into the

merits of all the contentions raised and even an

adjudication of limitation will amount to an

adjudication of the application filed under Order CRP Nos.492 and 627 of 2017

XXI Rule 97 and such an order will have the force

of a decree, as provided under Order XXI Rule

103. On perusal of the impugned order, it is seen

that the decision was rendered after necessary

adjudication regarding the petitioner's