1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.9144 OF 2009 1 Rameshchandra T. Mehta 2 Taraben K. Mehta ...Petitioners vs. 1 Sakuben Jaswantlal Kansara 2 Jaswantlal Kansara 3 Harish Bansilal Mistry ...Respondents Mr.Bharat Joshi for the petitioners Mr.S.V.Sadavarte for the respondent Nos.1 and 2 CORAM :A.S.OKA,J. DATE : MAY 7, 2010 JUDGMENT : 1 The submissions of the learned counsel for the parties were heard earlier. The learned counsel were put to notice by order dated 7 th January 2010 that the petition will be decided finally at the stage of admission. 2 The question which is involved in this Petition is whether the power under section 10 of the Code of Civil Procedure,1908 (hereinafter referred to as `the said Code ) can be invoked to stay the proceedings of obstructionist notice under Rule 97 of the Order XXI of the said Code. 3 The present petitioners filed a suit no.679/113/2000 against the 1 st and 2 nd respondents. The suit was filed for possession of room no.1 situated on the first floor of the building Shivshakti Niwas, 1 st Bhoiwada, Bhuleshwar, Mumbai 400 002. According to the case of the petitioners, one Maneklal was the original tenant in 2 respect of the room no.1. It is stated that the 1 st and 2 nd respondents are occupying the suit premises as heirs of the original tenant. The suit was contested by the 1 st and 2 nd respondents by contending that the said Maneklal was the tenant in respect of the room no.1 as well as room no.2 situated on first floor of the same building. It was contended that the 1 st and 2 nd respondents were the tenants in respect of both in room no.1 and room no.2. In the said suit no.679/113 of 2000, an issue was framed by the Court of Small Causes on the maintainability of the suit based on contention of the 1 st and 2 nd respondents that they were the joint tenants in respect of the room no.1 and 2. It must stated here that the suit no.834/1539 of 2004 was filed by the petitioner against the 3 rd and 4 th respondents herein seeking possession of the said room no.2. There is a consent decree passed in the said suit between the petitioner and the 3 rd and 4 th respondents under which the said respondents were ordered and decreed to hand over possession of the room no.2 to the petitioners. 4 Suit no.679/113 of 2000 was dismissed. An appeal preferred by the petitioners against the decree passed in the suit is pending. In execution of the decree passed in the suit no.834/1539 of 2004, it appears that 1 st and 2 nd respondents obstructed and therefore, a notice under Rule 97 of the Order XXI of the said Code was taken out by the petitioners for removal of the obstruction of the 1 st and 2 nd respondents. It appears that a notice was taken out by the 1 st and 2 nd respondents for stay of hearing of the obstructionist notice pending disposal of the appeal preferred by the petitioners. By the impugned order, the said notice was made absolute and hearing of the obstructionist notice was stayed till the disposal of the appeal. A Revision application preferred by the 3 petitioner against the said order has been dismissed. 6 The learned counsel for the petitioners submitted that the proceedings could have been stayed only by invoking section 10 of the Code of Civil Procedure,1908 and obstructionist proceedings cannot be termed as a suit. Even otherwise also section 10 has no application as all the issues arising between the petitioners and the respondent nos.1 and 2 will have to be decided under the obstructionist notice. 7 The learned counsel for the 1 st and 2 nd respondents placed reliance on the decision of the Apex Court in case of Kailash Natha Agarwal and others Vs. Pradeshia Industrial & Investment Corporation of U.P.Ltd. And another [(2003 4 SCC 305]. He also placed reliance on the decision of a Division Bench of this Court in case of Byramjee Jeejeebhoy Pvt.Ltd. Vs. Govindbhai Appaji Bhate and others [1994 (1) Bom. C.R. 211]. Inviting my attention to Rules 101 and 103 of Order XXI of the said Code, he submitted the order passed on Obstructionist notice has a force of a decree and therefore, proceedings of Obstructionist notice will have to be treated as a suit. He, therefore, submitted that the trial Court was justified in granting stay by invoking section 10 of the said Code. He submitted that even in the suit filed by the petitioner in respect of room no.1, the 1 st and 2 nd respondents have claimed joint tenancy in respect of the room nos.1 and 2 and an issue based on the said contention will be decided in the pending appeal. 8 I have considered the submissions. Section 10 of the said Code reads thus : 10.Stay of suit  No Court shall proceed with the 4 trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title whether such suit is pending in the same or any other Court in [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by [the Central Government] and having liking jurisdiction, or before [the Supreme Court]. Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in [India] from trying a suit founded on the same cause of action. 9 The first question is whether a obstructionist Notice can be treated as a suit as what can be stayed under section 10 is a suit. 10 The obstructionist notice (an application under Rule 97 of the Order XXI of the said Code) has been taken out in execution of the decree for possession in respect of room no.2. It is clear that all questions including the question relating to right,title or interest in the suit room arising between the decree holder and obstructionist will have to be decided in the said proceedings and not by a separate suit. Rule 103 provides that the order passed on adjudication made on application under Rule 97 of Order XXI of the said code shall have the same force and subject to same conditions as to an appeal or otherwise as if it were a decree. Thus, the said adjudication becomes a decree by a legal fiction created by rule 103. Though the order made on adjudication may 5 have the force of a decree for the purposes of an appeal, that does not confer status of the suit on proceedings under Rule 97 of Order XXI of the said Code. Section 10 applies to the suit thereby meaning the original suit between the parties. In the present case, the suit has been disposed of and what is pending is the execution application. The execution application relates to possession of room no.2 and pending appeal against the decree in the suit before the Appeal Bench of Court of Small Causes relates to possession of room no.1. Thus, the proceedings under Rule 97 of the Order XXI of the said Code not being a suit within the meaning of section 10 of the said Code, the said section will have no application. In view of the settled law, if section 10 of the said Code cannot apply, recourse cannot be taken to section 151 of the said Code. Therefore, order of stay passed by the trial Court and confirmed in revision is completely erroneous and will have to be quashed and set aside. Hence, the petition must succeed only on the ground that there was no power vesting in the trial Court to stay the proceeding of obstructionist notice. 11 Hence, I pass the following order : i) Petition is allowed in terms of prayer clause (a). Application made by the 1 st and 2 nd respondents for stay of the obstructionist notice proceedings stands rejected. ii)It is made clear that no adjudication has been made by this Court on merits of the pending appeal and the obstructionist notice. iii)Petition is allowed in above terms with no order as to costs. JUDGE 6