IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 EX.SA.NO. 8 OF 2009() --------------------------------- AS.10/2009 OF ADDL. DISTRICT COURT, PARAVUR OS.278/2002 OF MUNSIFF COURT,ALUVA .................... APPELLANT-APPELLANT-PETITIONER ----------------------------------------------------- PRADEEP, AGED 40, S/O.CHATTU, PUTHUMANA HOUSE, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK. BY ADV. SRI.B.JAYASANKAR RESPONDENT(S) – RESPONDENTS - RESPONDENTS: ---------------------------------------------------------------------- 1. MOHAMMED ASEEM, S/O.KUNJALI NAINA, VEZHAPPILLY HOUSE, PALACE ROAD ALUVA. 2. HALEENA NAINA, S/O.KUNJALI NAINA, VEZHAPILLY HOUSE, PALACE ROAD, ALUVA. 3. V.K.HARIS, S/O.KUNJALI NAINA, VEZHAPPILLY HOUSE, PALACE ROAD, ALUVA. 4. ALUVA MUNICIPALITY, REP. BY ITS SECRETARY, MUNICIPAL OFFICE, ALUVA. 5. SURESH BABU, S/O.KUTTAPPAN, AMC-18/483, PALACE ROAD, ALUVA. ADV. SRI.A.JAYASANKAR FOR R5 SRI.MANU GOVIND FOR R5 SRI.A.VIJAYAKUMAR FOR R1-3 SRI.A.N.SANTHOSH FOR R1-3 THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = EX.S.A. NO. 8 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of November, 2009 J U D G M E N T ---------------------- Admit. The following substantial question of law is framed for a decision. When an obstruction petition is filed by a third party to the decree contending that the property in his occupation is not the subject matter of the decree sought to be executed, is not the execution court bound to adjudicate the same as contemplated in Order XXI Rules 97 to 103 and enter a finding on all questions including questions relating to title or interest in the property arising between the parties? 2. The dispute concerns evictability of a Bunk which allegedly belonged to respondent No.5. Respondent Nos.1 to 3 obtained a decree for mandatory injunction against No.4, Aluva Municipality for removal of the unauthorised Bunk put up by respondent No.5 in the plaint schedule which the trial court found is without complying with the provisions of the relevant Act and Rules. To execute that decree respondent Nos.1 to 3 filed E.P. No.4 of 2008. The Amin deputed by the executing court went to the spot, according EX.S.A. NO.8 of 2009 -: 2 :- to the appellant in the presence of the Advocate Commissioner obviously for the purpose of executing the decree. Appellant claimed that the decree was attempted to be executed against the Bunk belonging to him, he having took it on a mortgage agreement dated 1.6.2001 from respondent No.5. He also contended that the Bunk described in the decree schedule is different from the Bunk over which he is claiming mortgage right as per agreement dated 1.6.2001. Alleging that under the guise of the decree obtained in respect of the Bunk referred to in the decree schedule he is attempting to be evicted, appellant filed E.A. No.226 of 2008 under Order XXI Rule 97 of the Code of Civil Procedure (for short, “the Code”). Respondent Nos.1 to 3 filed objection to the said application mainly on the acceptability of the agreement dated 1.6.2001 and also contending that since appellant is claiming under respondent No.5, he has no legs to stand. Appellant also filed E.A. No.227 of 2008 to depute an Advocate Commissioner to identify the Bunk over which he is claiming right as per the mortgage agreement. Executing court marked Ext.A1, agreement dated 1.6.2001 and Ext.B1, a document obtained by respondent Nos.1 to 3 under the provisions of the Right to Information Act regarding Bunk No.VIII/40(1). Executing court considering the evidence held that Ext.A1 does not create any mortgage over the petition schedule Bunk, EX.S.A. NO.8 of 2009 -: 3 :- it is only a lease arrangement and having been for a period of 15 years but unregistred cannot create any interest over the property. Holding so E.A. No.226 of 2008 was dismissed. Appellant took up the matter in appeal. First appellate court confirmed the finding of the executing court as to the nature and character of Ext.A1 but found that even if the document which required registration is not so registered, it could be looked into for collateral purposes for ascertaining nature of the possession if any appellant is claiming over the disputed Bunk. Ultimately first appellate court agreed with the finding of the executing court and dismissed the appeal. Hence this Second Appeal urging the above substantial question of law. Learned counsel for appellant contended that courts below have proceeded on the assumption that appellant is claiming under respondent No.5 and disposed of E.A. No.226 of 2008 as if appellant is a pendente lite transferee in respect of the Bunk described in the decree schedule. Learned counsel contends that in so far as appellant claimed that the Bunk described in the petition schedule is different from the Bunk described in the decree schedule though he got possession of the same from respondent No.5, he cannot be said to be claiming under respondent No.5 so far as the Bunk described in the decree schedule is concerned. Learned counsel contends that appellant was not given EX.S.A. NO.8 of 2009 -: 4 :- an opportunity to adduce evidence and that even E.A. No.227 of 2008 filed for deputing an Advocate Commissioner to identify the Bunk referred to in the petition schedule was not considered at the appropriate time and instead consequent to the dismissal of E.A. No.226 of 2008 that application was also dismissed. Learned counsel contends that the procedure adopted by the executing court is not correct and has resulted in grave injustice to the appellant in so far as he is not given an opportunity to prove that the petition schedule Bunk is not the Bunk described in the decree schedule. Learned counsel for respondent Nos.1 to 3 contended that respondent No.5 had preferred an application to depute an Advocate Commissioner which the executing court dismissed and that was confirmed by this Court in Writ proceedings. According to the learned counsel attempt is to stall execution of the decree. Learned counsel points out from Ext.B1 that the Bunk referred to in the petition schedule never got assessment number (VIII/40(1)) as is clear from Ext.B1 that during the relevant time no such assessment number had been given to any Bunk. Respondent Nos.1 to 3 have produced certain documents in this Second Appeal along with I.A. No.2844 of 2009 to be received as additional evidence under Order XLI Rule 27 of the Code. 3. True, Rule 97 of Order XXI of the Code deals with the EX.S.A. NO.8 of 2009 -: 5 :- procedure to be followed when the decree holder apprehends obstruction and Rule 99 deals with the procedure to be followed when any person other than the judgment debtor is dispossessed of immovable property by a decree. Though the Code does not provide for anticipatory obstruction it has been held by the Supreme Court in Bhanwar Lal v. Satyanarain ([1995] 1 SCC 6) followed in Babu Lal v. Raj Kumar (AIR 1996 SC 2050) that notwithstanding the absence of a specific enabling provision it is open to a person not being party to the decree and claiming right over the property to inform the executing court about the right he claims and in such situation if the executing court finds that an enquiry is warranted, it is well within its power to conduct such enquiry rather than leaving the person concerned to the mercy of Amin or other persons deputed to execute the decree. In the light of the said decisions petition filed by the appellant was competent and the executing court was competent and authorised to conduct enquiry on that matter. It is not disputed that executing court conducted an enquiry as revealed from Exts.A1 and B1. But, grievance of the appellant is that none of the courts considered the question whether the Bunk described in the petition schedule is the same as the Bunk described in the decree schedule and without conducting an enquiry into that, executing court dismissed EX.S.A. NO.8 of 2009 -: 6 :- the application. I have gone through the decree schedule as well as the petition schedule and find that boundaries mentioned and description are different. I do not forget that respondent Nos.1 to 3 have a case that boundary descriptions in the petition schedule are made in such a way as to make it appear that the Bunk referred to in the petition is not the one described in the decree schedule. It is also argued by learned counsel for respondent Nos.1 to 3 that the prior documents referred to in Ext.A1 are not produced. The mere fact that Ext.B1 is produced to show that no assessment number as VIII/40(1) had been given to any Bunk at the relevant time is not by itself sufficient to show that the Bunk referred to in the petition schedule is the one referred to in the decree schedule concerning which decree for mandatory injunction has been passed. Certainly, executing court had to conduct some enquiry as to the identity of the petition schedule Bunk and be satisfied about its identity for deciding upon the petition one way or other. That has not been done in this case. I also find that E.A. No.227 of 2008 filed by the appellant to depute an Advocate Commissioner to identify the disputed Bunk was dismissed by the executing court only after and in consequence of dismissal of E.A. No.226 of 2008. That deprived the appellant of an opportunity to adduce appropriate evidence. EX.S.A. NO.8 of 2009 -: 7 :- 4. Documents produced in the appeal at the instance of respondent Nos.1 to 3 according to learned counsel would show that the electric connection obtained with respect to the decree schedule Bunk has been taken in respect of the Bunk referred to in the petition schedule That also is a matter which the executing court can consider. On going through the order and judgment under challenge and hearing counsel on both sides, I am persuaded to think that the executing court while conducting the enquiry did not go into the prime question whether the Bunk referred to in the petition schedule is the one referred to in the decree schedule. Decision of the executing court on E.A. No.226 of 2008 should have followed such a finding. In the above circumstances I am constrained to set aside the judgment and order under challenge and remit the matter to the executing court to conduct appropriate enquiry into the matter of identity disputed by the appellant and set up by respondent Nos.1 to 3. Substantial question of law is answered accordingly. Second Appeal is allowed. Judgment and order of the courts below, under challenge are set aside. I also set aside the order on E.A. No.227 of 2008. Execution Application No.226 2008 is remitted to the executing court for fresh consideration and to pass appropriate order after conducting proper enquiry. I make it clear that it will be EX.S.A. NO.8 of 2009 -: 8 :- open to the parties to adduce appropriate evidence in case they are so advised. Execution Application No.227 of 2008 also is remitted to the executing court. It will be open to the executing court to consider whether an Advocate Commissioner has to be deputed as requested in E.A. No.227 of 2008 having regard to the nature of evidence the appellant may put in. I direct the executing court to expedite the enquiry and pass appropriate orders since the suit is of the year 2002. Parties shall appear in the executing court on 23.12.2009. Registry shall transmit the entire records along with the additional documents produced in the Second Appeal to the executing court forthwith. THOMAS P.JOSEPH, JUDGE. vsv EX.S.A. NO.8 of 2009 -: 9 :- THOMAS P.JOSEPH, J. =================== EX.S.A. NO.8 OF 2009 =================== J U D G M E N T 30TH NOVEMBER, 2009