IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 30.11.2010 Coram THE HONOURABLE MR.JUSTICE R.SUBBIAH Civil Miscellaneous Appeal No.2785 of 2010 and M.P.Nos.1 to 3 of 2010 M.Baskar ..Appellant ..vs.. 1. M.Parameshwari 2. E.Rajkumari 3. R.Sampath 4. A.Selvamani ..Respondents Civil Miscellaneous Appeal filed under Order 21 Rule 104 of the Civil Procedure Code, against the order dated 08.09.2010 made in E.A.No.231 of 2010 in E.P.No.19 of 2009 in O.S.No.104 of 2007 on the file of the Principal District Judge, Chengalpattu. For Appellant : Mr.N.Jothi, Senior Counsel for Mr.M.C.Govindan For Respondents: Mr.V.Raghavachari for R1 and R2 Mr.M.S.Subramanian for Mr.G.Sarava Kumar for R3 and R4 JUDGMENT The appellant herein is a third party to the proceedings pending before the Principal District Court, Chengalpattu and he filed the present appeal aggrieved over the order dated 08.09.2010 passed by the learned Principal District Judge, Chengalpattu, in E.A.No.231 of 2010 in E.P.No.19 of 2009 in O.S.No.104 of 2007, directing the bailiff to remove the obstructor, the appellant herein, from the suit property, namely, 98 cents comprised in old Survey No.134/3 and new Survey No.134/69 of Perungalathur Village, Chengalpattu Taluk, with a compound wall on all sides and trees. 2. The brief facts, which are necessary to decide the issue involved in this appeal, are as follows: It is the case of the appellant that he purchased the suit property from one A.V.Padmanabhan, the grandson of A.Veeraraghava https://hcservices.ecourts.gov.in/hcservices/ Iyengar, under a Sale Deed dated 19.07.2006 and from three other persons, who are also claiming ownership over the said property, under a Ratification Deed dated 08.02.2007. Thus, by virtue of the said sale deed and the ratification deed, the appellant is the owner of the said property and after purchase, he built a small house for watchman and a store room and planted about 50 coconut saplings and he also made improvements in the suit property, such as digging a bore well, obtaining power supply from the Tamil Nadu Electricity Board, Perungalathur,installing 1-1/2 horsepower motor and apart from that, he constructed a pucca compound wall, the thickness of which is 9 inches with the height of 7-1/2 feet, surrounding the property, to avoid any encroachment. The servant quarters and the store room were assessed to house tax by the Perungalathur Town Panchayat and the door number was also allotted. Patta was also given in the name of the appellant in respect of the suit property. 3. In the said situation, on 21.09.2010, the respondents herein, by obtaining an order in E.A.No.231 of 2010 in E.P.No.19 of 2009 in O.S.No.104 of 2007, which is the suit filed by respondents 1 and 2 as plaintiffs against respondents 3 and 4 as the defendants, removed the obstructor (the appellant herein) from the suit property claiming the same as their ancestral property and demolished the compound wall, uprooted the coconut saplings and took the possession of the suit property forcibly. Thereafter only, the appellant, who was not aware of the suit proceedings and the subsequent execution proceedings, came to know about the following facts. (a) Respondents 1 to 3 are the children of one K.V.Rama Reddy, son of Venkata Perumal Reddy, and the 4th respondent is the wife of the 3rd respondent. Respondents 1 and 2, in connivance with respondents 3 and 4, filed a suit in O.S.104 of 2007 on 07.03.2007 before the Principal District Judge, Chengalpattu, for a preliminary decree of partition in respect of the suit property stating that the same is their ancestral property since they have inherited the same from their great grandfather. After filing the said suit, respondents 1 and 2 have filed another suit in O.S.91 of 2007 on 12th March, 2007 before the District Munsif Court, Tambaram, as against respondents 3 and 4, A.V.Padmanaban (the vendor of the appellant) and the appellant as defendants 1 to 4 and also by adding other public officials as defendants 5 to 10 for a declaration that the sale deed executed by the 3rd defendant (vendor of the appellant) in favour of the appellant herein as illegal and null and void and also for an injunction restraining the appellant and his vendor from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property. The said suit was filed with the false allegation as if respondents 3 and 4 herein (defendants 1 and 2 therein) are in possession of the suit property, though the appellant is in possession of the suit property from the date of purchase from A.V.Padmabahan. In the subsequent suit, namely, O.S.91 of 2007, the plaintiffs had suppressed the fact about the filing of the earlier https://hcservices.ecourts.gov.in/hcservices/ suit O.S.No.104 of 2007 on the file of principal District Judge, Chengalpattu. Pending suit, an ex parte order of injunction was also obtained by the plaintiffs in I.A.No.432 of 2007 on 13.12.2007 in the suit filed before the District Munsif Court, Tambaram as against the appellant herein. Thereafter, respondents 1 to 4 entered into a compromise in the partition suit in O.S.104 of 2007 on the file of the Principal District Judge, Chengalpattu, by filing a memorandum of compromise on 28.01.2008 and obtained a consent decree based on the said memorandum of compromise. Even after obtaining the decree in O.S.104 of 2007, respondents 1 to 4 were prosecuting the suit pending before the District Munsif Court, Tambaram, in O.S.No.91 of 2007 filed against the appellant and his vendor. (b) After obtaining a consent decree in the partition suit, respondents 1 to 4 colluded themselves and filed E.P.No.19 of 2009 for taking delivery of possession of the suit property focussing the case as if respondents 3 and 4 are in possession of the property. In the said E.P., respondents 1 and 2 filed four execution applications No.228, 229, 230 and 231 of 2010 praying to give police protection, to break-open the lock and demolish the compound wall, to disconnect the electricity service connection and to remove the obstructor (the appellant herein) from the suit property, alleging that the appellant was obstructing the bailiff from enjoying the fruits of the compromise decree by the respondents and he was not permitting the bailiff to execute the warrant and by its separate orders dated 08.09.2010, the trial court allowed all the execution applications. Thereafter, the respondents with the help of the bailiff, came to the suit property on 21.09.2010 and demolished the compound wall and took the possession forcibly. Subsequent to the deliberate act of the respondents along with the bailiff on 21.09.2010, the appellant came to know about all the facts. Hence, the present appeal is filed as against the order dated 08.09.2010 in E.A.No.231 of 2010, i.e.the application to remove the obstructor from the suit property, alleging that on collusion, the respondents filed both suits and obtained the order from the learned Principal District Judge and took possession of the suit property forcibly in spite of the fact that the appellant is the owner of the same. 4. Learned Senior Counsel appearing for the appellant submitted that when a compromise decree was obtained in the suit filed by respondents 1 and 2 as against respondents 3 and 4, there is no question of filing execution petition against respondents 3 and 4. The entire episode is only a collusion and fraud among the respondents to grab the property from the appellant, whereas the fact remains that the appellant is the absolute owner of the suit property, having purchased the same from one A.V.Padmanaban under the sale deed dated 19.07.2006 and the ratification deed dated 08.02.2007. Subsequently, the appellant came to know that the bailiff made an endorsement on 05.04.2010 in the warrant as if there was an obstruction for taking delivery of the property. Based on that https://hcservices.ecourts.gov.in/hcservices/ endorsement, the plaintiffs filed execution application to remove the obstruction. When that being the position, the trial Judge ought to have ordered a notice under Form No.40 of Appendix E as per the provisions under Order 21 Rule 97 C.P.C. to the obstructor assuming that there was an obstruction; but, in the instant case, the trial court, by giving a go-by to all cardinal principles of law, passed an erroneous order to remove the obstructor, which created an havoc in the appellant's life in depriving the property, which could easily be worth about Rs.10 crores as on date. 5. The learned senior counsel for the appellant further submitted that on appearance by the obstructor, on receipt of the notice under Form 40, all questions arising between the parties to the proceedings have to be adjudicated and have to be determined by the Court under Order 21 Rule 101 C.P.C. Any order of adjudication arises out of Rule 101 will be treated as a decree, but the learned Principal District Judge, without following the procedures, ordered the removal of the obstructor directly, based on the endorsement made by the bailiff on 05.04.2010 with the connivance of respondents 1 to 4, which is patently illegal and is liable to be set aside. In support of his submissions, the learned senior counsel relied upon the decisions reported in the case of SILVERLINE FORUM PVT.LTD., .vs. RAJIV TRUST AND ANOTHER ((1998) 3 SCC 723), UMA NATH PANDEY .vs. STATE OF U.P. (2009 (2) CTC 663) and DALIP SINGH ..vs.. STATE OF U.P.). 6. Per contra, the learned counsel for respondents 1 and 2/plaintiffs in the suit submitted that the question of issuing notice under Form No.40 of Appendix E C.P.C. does not arise in this case. The suit property originally measuring to an extent of 2.74 acres out of 10.96 acres, had been purchased by A.Veeraraghava Iyengar from one of the co-sharers of Rama Reddy (the father of the plaintiffs) by a sale deed dated 09.05.1949, under registered Document No.1131/1949. Subsequently, the said Veeraraghava Iengar had sold the entire 2.47 acres to various parties by way of five different sale deeds during the period between 1949 and 1981. Hence, Veeraragava Iyengar had no right in the entire extent of 2.74 acres; but, the vendor of the appellant A.V.Padmanabhan was claiming that he was having a title over 98 cents of subject property by way of a Will executed by his grandfather Veeraragava Iyengar dated 16.04.1988. When Veeraraghava Iyengar himself had lost title to the property, the question of conveying title to the grandson Padmanaban does not arise. Under such circumstances, the sale deed executed by Padmanaban in favour of the appellant would not convey any title and hence, the appellant is the stranger to the property and treating him as an obstructor does not arise in this case. 7. The learned counsel for respondents 1 and 2 further submitted that in the suit filed before the District Munsif Court, Tambaram in O.S.No.91 of 2007, an ex parte injunction restraining the appellant https://hcservices.ecourts.gov.in/hcservices/ from interfering with the possession of the plaintiffs was granted. Against the same, the appellant has not preferred any appeal, which would go to show that possession of the property is not with the appellant and only if the appellant is in possession of the property, he could be treated as an obstructor and then only the question of issuing notice under Form No.40 of Appendix E C.P.C. would arise. But, so far as the instant case is concerned, he is only a stranger. Therefore, no infirmity could be found in the impugned order passed by the court below. In support of his contentions, the learned counsel relied on the decision reported in the case of GANESAN.G .. vs.. J.SURENDRAN (2005(1) CTC 699). 8. Learned counsel for respondents 3 and 4 submitted that the interim injunction granted in I.A.No.432 of 2007 in O.S.No.91 of 2007 would assert the rights of these respondents in the suit property. Therefore, only if a person, who is in possession, obstructs the bailiff, he could be construed as an obstructor and if any third party who is not in a possession of the property, obstructs the bailiff, he can be treated only as a stranger and under such circumstances, the question of issuing notice under Form No.40 of Appendix E C.P.C. does not arise. 9. Heard the learned counsel for the parties and perused the materials available on record. 10. It is the case of the appellant that he purchased 98 cents in S.No.134/69 in Patta No.1309 in Perungalathur Village, Tambaram Taluk, from one Padmanaban, the grandson of Veeraraghava Iyengar, under the sale deed dated 19.07.2006 and thereafter from three others under the Deed of Ratification of sale dated 08.02.2007. After purchase, he put up a compound wall, planted 50 coconut saplings and constructed a shed for watchman and a store room and he is in possession and enjoyment of the suit property from the date of purchase and obtained patta in his name. In the said situation, respondents 1 and 2/plaintiffs filed the suit in O.S.No.104 of 2007 against respondents 3 and 4, who are the legal heirs of one Rama Reddy, for partition and subsequently, they entered into a compromise in the said suit and thereafter, the plaintiffs filed execution petition against respondents 3 and 4 to take delivery of possession of the suit property and finally, with the help of a bailiff, they demolished the compound wall and took possession forcibly. 11. Now, it is the main grievance of the appellant that only in order to grab the property from the possession of the appellant, respondents 1 and 2, colluded with respondents 3 and 4, filed the suit before the District Court, Chengalpattu. Subsequently, under the guise of filing execution petition against respondents 3 and 4, the property was forcibly taken by respondents 1 and 2, whereas it is the contention of respondents 1 and 2/plaintiffs that the property measuring to an extent of 2.74 acres was originally belonged to one https://hcservices.ecourts.gov.in/hcservices/ Veeraraghava Iyengar and he sold the entire property under five different sale deeds to various persons during his lifetime. Therefore, the vendor of the appellant, viz., Padmanabhan claiming himself to be the grandson of Veeraraghava Iyengar, did not have any right over the property since Veeraraghava Iyengar himself had lost title to the property during his lifetime. 12. It is the further contention of respondents 1 and 2 that they obtained an order of injunction against the appellant and his vendor from interfering with their peaceful possession and enjoyment of the suit property in the another suit filed before the District Munsif Court, Tambaram. Against the said interim order, no appeal was filed and the interim order would assert the possession of the plaintiffs/respondents 1 and 2 in the suit property. Under such circumstances, it could be easily inferred that the appellant, who was not in possession of the property, is trying to obstruct the delivery of possession of the property. Under such circumstances, he can be construed as a stranger and not as as an obstructor and as such, the question of issuing notice under Form No.40 of Appendix E CPC does not arise. 13. On a careful consideration of the submissions made by the learned counsel on either side, I am of the view that, as contended by the learned senior counsel for the appellant, when the compromise decree was obtained by the parties, the question of filing execution petition for taking delivery of possession of the suit property does not arise. But, in the instant case, respondents 1 and 2 have filed execution petition and the bailiff had also visited the suit property on 05.04.2010 and made the following endorsement. "Delivery warrant returned. Immovable property not delivered. 3rd party obstruction by one Baskar S/o.Mangappan made. Warrant could not be executed. Hence warrant for 3rd party removal order and police aid for demolishing of compound wall and shed and also needed for disconnection of electricity". The endorsement made by the bailiff would show that the property was protected by putting a compound wall by the obstructor. Under such circumstances, based on the endorsement, the learned trial Judge ought to have issued notice under Form No.40 of Appendix E C.P.C. summoning the obstructor to appear before the Court. 14. With regard to the submission made by the learned counsel for respondents 1 and 2 (plaintiffs) that the injunction order granted as against the appellant in the suit filed before the District Munsif Court, Tambaram would assert the fact that respondents 3 and 4 are in possession of the property, in my considered opinion, the said interim order is only an ex parte order. Therefore, the ex parte order will not be helpful in any way to https://hcservices.ecourts.gov.in/hcservices/ persuade this Court that the property was not in possession of the appellant, more so in the circumstances when the bailiff has made an endorsement to the effect that since there was an obstruction, he sought the police aid to demolish the compound wall in the property put up by the obstructor. Therefore, in my considered opinion, the evidence on record would show that the appellant is only an obstructor and he cannot be construed as a stranger to the property. Under such circumstances, the trial court ought to have issued notice under Form No.40 of Appendix 'E' CPC summoning him to appear and answer charge of obstructing execution of decree. But, in the instant case, the trial court, by giving a go-by to all the procedures, directly ordered removal of the obstructor. In this regard, it is appropriate to look into the decisions relied on by the learned senior counsel for the appellant. In AIR 1998 SC 1827 (SHREENATH .. vs.. RAJESH), the Supreme Court held as follows: "14. We find both either under the old law or the present law the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21, Rule 97, has to be decided by the Executing Court itself". 15. In (1998) 3 SCC 723 (SILVERLINE FORUM PVT.LTD., ..vs.. RAJIV TRUS), it has been held as follows: "14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make the adjudication on admitted facts or even on the averments made by the resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary". 16. In 1984 TNLJ 368 (FATHIMA AUTOMOBILES ..vs.. P.K.P.NAIR AND OTHERS), a Division Bench of this Court at page 370 has stated as follows: "... Order 21 Rule 97(1) C.P.C.provides that where the decree-holder or the purchaser of any property sold in court auction, is resisted or obstructed by any person in obtaining possession of the property the decree holder or the auction purchaser may make an application to the Court complaining of such resistance or obstruction. Rule 97(2) enables the Court to adjudicate upon such an application for removal of obstruction in accordance with the provisions contained in Order 21 Rule 101 as amended by Act 104 of 1976 lays down that https://hcservices.ecourts.gov.in/hcservices/ all questions arising between the parties to an application under Rule 97 shall be determined by the executing Court dealing with the application and not by a separate suit and for this purpose the executing 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. Thus, after the Amending Act 104 of 1976 was passed the executing Court before which an application is filed for removal of obstruction has to decide all questions arising between the parties viz., the decree holder and the obstructor and that no separate suit will lie for the purpose of deciding the dispute between the decree-holder and the obstructor. Having regard to the specific and express provision contained in Rule 101 of Order 21 C.P.C. that against an order of removing or refusing to remove obstruction, a separate suit is not maintainable all the questions arising between the parties to the application for removal of obstruction has to be decided by the executing Court itself as that Court has been conferred a specific power to decide all the questions arising between the parties while disposing of the application for removal of obstruction.....". 17. In AIR 1997 P & H 130 (SOM PARKASH ..vs.. SANTOSH RANI), it has been held as follows: "The term 'adjudication' as used in Order 21, Rules 97 and 98, does not start and end with the framing of the issues but it requires appreciation of the case of the objector and the documents in support of such objections. Adjudication does not mean that framing of issues is always necessary for the executing Court. If the pleas raised by the objector in his objection petition have been considered prima facie by the executing Court then there should not be any grouse to the objector. Where the objector to the execution of the eviction decree had claimed that he was inducted as tenant of the disputed property by the original owner of the property much prior to its purchase by the decree-holder and his possession was continued even after purchase of the property by the decree- holder and that the landlord had put up the judgment-debtor as tenant and obtained decree against him but this claim of the objector had been rejected by the Civil Court while considering his application for temporary injunction in the suit for declaration filed by him against the decree-holder, the rejection of the objection by the executing Court on consideration of the orders of the Civil Court could not be found fault with on ground that issues were not framed by the execution Court". https://hcservices.ecourts.gov.in/hcservices/ 18. In (2010) 2 SCC 114 (DALIP SINGH ..vs.. STATE OF U.P.), the Hon'ble Apex Court has held as follows: "1. For many centuries Indian society cherished two basic values of life i.e. “satya” (truth) and “ahimsa” (non- violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. 2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. 19. In 2009(2) CTC 663 (UMA NATH PANDEY ..vs.. STATE OF U.P.), the Supreme Court has observed as follows: "6. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties.It is the substance of justice which has to determine its form. 7. The expressions "natural justice" and "legal justice" do not present a water-tight classification. It