IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3 - 3-2011 CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN C.M.S.A.No.8 of 2007 1. T. Arivakkarasan 2. T.Muthukkarasan ... Appellants Vs. D.Gunasundari ... Respondent Civil Miscellaneous Appeal filed under Section 104 r/w 100 of Code of Civil Procedure against the order and decreetal order dated 22.11.2006 passed in C.M.A.No.69 of 2005, on the file of the Principal District Judge, Chengalpattu, in confirming the judgment and decree in E.A.No.234 of 2004, in E.P.No.69 of 2002, in O.S.No.413 of 1993, on the file of the Subordinate Court, Poonamallee. For Appellants : Mr.V.Lakshmi Narayanan For Respondent : Mr.G.Ashokapathy for M/s. Pass Associates JUDGMENT The respondent/plaintiff filed the suit in O.S.No.413 of 1993, for recovery of possession of the suit property from the defendants. 2. The above said suit was decreed ex parte on 3.4.1995. Thereafter, the respondent-decree holder herein filed an Execution Petition in E.P.No.148 of 1995, for delivery of the suit property, which was re-numbered as E.P.No.69 of 2002, on the file of the Subordinate Court, Poonamallee. While executing the decree, it was found that the appellants have caused obstruction, questioning the title of the respondent-decree holder and therefore, the respondent- decree holder filed an application under Order 21, Rule 97 of C.P.C. in E.A.No.261 of 1998, for removal of obstruction caused by the appellants, which was re-numbered as E.A.No.234 of 2004. That application was allowed and against the same, the appellants filed C.M.A.No.69 of 2005, on the file of the Principal District Judge, https://hcservices.ecourts.gov.in/hcservices/ Chenglepattu. That appeal was dismissed and against the same, this Civil Miscellaneous Second Appeal was filed by the appellants. 3. This Civil Miscellaneous Second Appeal was admitted and notice of motion was ordered and at the time of arguments, the following Substantial Questions of Law were raised:- a Whether the application under Order 21, Rule 97 of C.P.C is maintainable against strangers to the suit and those claiming independent title to the suit property? c) Whether the application for removal of obstruction is maintainable as against the appellants, when they are not claiming any right under the judgment-debtor? and both the parties advanced arguments on the above Substantial Questions of Law: 4.Mr.V.Lakshmi Narayanan, the learned counsel appearing for the appellants submitted that the even prior to the filing of the suit, the suit property was purchased by the obstructors from the third- judgment debtor under a registered sale deed dated 09.7.1987 and were in possession and enjoyment of the same and knowing fully well that they are in possession of the property, they were not impleaded in the suit filed by the respondent-decree holder. Therefore, the appellants are the third parties to the decree and the decree obtained by the respondent-decree holder does not on them. As the third parties to the decree, they are entitled to challenge the title of the respondent-decree holder to the suit property and the decree obtained by the respondent-decree holder behind the back of the appellants cannot be executed against them. 5. On the other hand, Mr.G.Ashokapathy, the learned counsel appearing for the respondent submitted that even prior to the purchase of the suit property by the obstructors from the third- judgment debtor, the suit property was purchased by the respondent- decree holder under a registered sale deed dated 08.06.1983 viz., Ex.P1. Further, it is made clear from the recitals stated in Ex.P1, that the respondent's vendor purchased the suit property under a registered sale deed dated 28.03.1969 and in that sale deed viz., Ex.P1, title was traced to a partition deed dated 26.07.1966 and from the sale deed of the appellants, it is seen that after the sale in favour of the respondent, her vendor viz., third-judgment debtor sold the same properties to the appellants and therefore, the appellants cannot claim any title to the suit property, as they purchased the property from the vendor, who had no title to the suit property, as the vendor had already sold the property to the respondent decree holder. https://hcservices.ecourts.gov.in/hcservices/ 6. The learned counsel appearing for the respondent therefore submitted that as the vendor of the appellants had no title to the suit property, the appellants cannot derive any title under Ex.R1, and hence, they cannot obstruct the delivery of the property by the respondent-decree holder. 7. Therefore, we will have to see whether the appellants can challenge the decree passed in O.S.No.413 of 1993, on the ground that they are not parties to the same and whether the appellants are entitled to resist execution of the decree by the respondent. 8. As per Order 21, Rule 97 of C.P.C., when an obstruction is made by any person, the Court shall proceed to adjudicate upon the application in accordance with the provisions contained in Order 21, Rules 98, 99 and 100 of C.P.C. As per Rule 101 of Order 21, all questions including the question relating to right, title or interest in the property arising between the parties in an application under Rule 97 and relating to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit. 9. Therefore, when an application is filed under Order 21, Rule 97 of C.P.C., stating that there are obstructors, objecting to the execution of the decree by the respondent-decree holder, the Court has to decide the question relating to right, title or interest in the property between the parties in that application and it cannot be decided in a separate suit. 10. Admittedly, the appellants were not parties to the suit in O.S.No.413 of 1993 and they are the third parties and therefore, they are not bound by the decree. Nevertheless, the appellants have also purchased the suit property from the third-judgment debtor from whom, the respondent-decree holder purchased the suit property and the sale deed executed in favour of the respondent- decree holder was earlier in point of time and the sale deed executed in favour of the appellants was later in point of time. Therefore, while executing the sale deed in favour of the appellants, their vendor viz., third- judgment debtor did not have a valid title to the suit property. Hence, the appellants also will not get any title to the suit property. 11. Further, the rights of third party can also be decided in a proceeding under Order 21, Rule 97 of C.P.C. and as per the judgment of the Hon'ble Supreme Court reported in (1998) 3 S.C.C. 723 in the case of (Silverline Forum Pvt. Ltd., Vs. Rajiv Trust and another), the Executing Court is entitled to adjudicate the inter se claims of the decree holder and the third parties in the Executing proceedings themselves to avoid prolongation of litigation by driving the parties to file an independent suits. https://hcservices.ecourts.gov.in/hcservices/ 12. Furthermore, in the judgment reported in A.I.R. (2004) SC 511 in the case of (Ashan Devi and another Vs. Phulwasi Devi), the Hon'ble Supreme Court has held as follows:- "Earlier under the Code prior to 1976 Amendment, third party 'dis-possessed' in the execution of the decree was required to institute an independent suit for adjudication of its right and claims. In order to shorten the litigations concerning same properties between same and third parties, claims of third parties to the property in execution are now required to be determined by the executing court itself in accordance with provisions under Order 21, Rule 101 with right of appeal to the higher Court against such adjudication treating it to be a 'decree' under Order, 21, Rule 103 of C.P.C." and in the judgment reported in ( 1999) A.I.R. L.W. 5093 in the matter (Noorduddin Vs. Dr.K.L.Anand), the Hon'ble Supreme Court has held as follows:- " Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties, as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under order 21, Rule 103 of 1998 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution. " 13.Therefore, from the above judgment it is clear that eventhough the appellants are not parties to the suit, the Executing Court has to decide the title of the parties and as stated supra, the appellants claimed title under a sale deed executed by the third- judgment debtor, after the third-judgment debtor sold his interest in the property to the respondent- decree holder under a registered sale https://hcservices.ecourts.gov.in/hcservices/ deed executed earlier. Therefore, the appellants cannot claim any right over the suit property and that was rightly appreciated by the Court below and the application filed by the respondent for removal of obstruction was ordered. 14. Hence, the Substantial Questions of Law are answered against the appellants and this Civil Miscellaneous Second Appeal is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Sd To 1.The Principal District Judge, Chengalpattu. 2.The Subordinate Judge, Poonamallee. 3. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr.V. Raghavachari, Advocate SR.15307 + 1 cc to M/s. Pass Associates Sr.15861 C.M.S.A.No.8 of 2007 JRG(CO) Eu 15.3.11 https://hcservices.ecourts.gov.in/hcservices/