THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD S.A.Nos.439 of 2009, 440 of 2009, 441 of 2009 And 442 of 2009 COMMON JUDGMENT: As all these four Second Appeals had their origin in the common order pronounced by the executing Court on four Execution Applications involving common questions of law and fact, they are being disposed of by this common judgment, though, the first appellate Court has delivered separate judgments in the four appeals before it, of course, with identical conclusions. E.A.Nos. 4 of 2006 to 7 of 2006 in E.P.Nos.11 of 2006 to 14 of 2006 in O.S.No.59 of 1999, O.S.No.2 of 2001, O.S.No.8 of 2001 and O.S.No.9 of 2001 respectively on the file of the Senior Civil Judge’s Court, Darsi, are petitions filed by the appellants herein under Order 21, Rule 97 and Section 151 of the Civil Procedure Code to declare the decrees passed in respective suits to be inexecutable as null and void against them. The appellants herein/petitioners therein contended that the property covered by the decrees in question is a five portioned house in the name of Adimamba and on the death of Guruswamy, husband of Adimamba, Adimamba and her son Ramakoteswara Rao and four daughters succeeded to it. Ramakoteswara Rao married Rajeswari and had a daughter through her by name Satyavathi. The marriage between Ramakoteswara Rao and Rajeswari was dissolved as per caste custom, after which, Rajeswari gave birth to a son, but not through Ramakoteswara Rao. Later, Ramakoteswara Rao married the first petitioner as per caste custom and they had two sons and one daughter/petitioners 2 to 4 out of their wedlock. Ramakoteswara Rao died in 2003. The daughters of Adimamba, brought into existence two Wills, which formed the basis for the four suits claiming respective suit schedule properties out of the subject house. While Adimamba had no reason for her to ignore her only son Ramakoteswara Rao, decrees were obtained in the four suits without impleading the appellants, who are in possession and enjoyment of the property, as heirs of Ramakoteswara Rao. The judgments and decrees are, therefore, not binding on the petitioners and inexecutable on them. The claims of the appellants in the Execution Applications were resisted by the respondents therein and herein contending that the marriage between Ramakoteswara Rao and Rajeswari was not dissolved either by caste custom or by the Court and the first petitioner was never married to Ramakoteswara Rao. Petitioner Nos.2 to 4 are not the children of Ramakoteswara Rao and the claims in the suits were under a Will executed by Adimamba, who did not give any property to Ramakoteswara Rao. There are no rights, which can be claimed by the petiitoners through Ramakoteswara Rao and they cannot obstruct the execution of the decrees. All the four Execution Applications were tried together and the executing Court examined PWs 1 to 5 and RWs.1 and 2 and marked Exs.A.1 to A.10 in the joint enquiry. The Executing Court rendered its common order on 12.6.2008 firstly concluding that the petitions are maintainable under Order 21, Rule 97 of the C.P.C. by following the decision reported in Pothuri Thulasi Dasu v Pothuri Nageswara Rao[1], wherein it was held that any third party can resist dispossession from the property and maintain a petition under Rule 97 of Order 21, even on the apprehension of such dispossession. It was also made clear that the judgment-debtor has no right to apply under that provision. The Executing Court, on merits of the claims of the petitioners, concluded that there was no proof of dissolution of marriage between Rajeswari and Ramakoteswara Rao, due to which the first petitioner cannot claim to be the legally wedded wife and petitioners 2 to 4 cannot be claimed to be the legitimate children of Ramakoteswara Rao. The Executing Court also observed that the property is self-acquired property of Adimamba, which is the subject matter of the two Wills, which were never challenged by the petitioners and the findings in favour of which became final in the suits. The Executing Court, therefore, considered the petitioners to have no right to claim in any portion of the schedule property, more so, when they did not take any steps to get themselves impleaded as parties to the suits after the death of Ramakoteswara Rao in spite of knowing about filing of the suits. The Executing Court also thought that the petitioners cannot raise such a plea in the execution proceedings about the validity of the decrees without questioning or challenging the judgments and decrees in the suits. While refusing to act upon the oral and documentary evidence of the petitioners, the Executing Court, therefore, held that the petitioners have no right in the subject property and have no right to obstruct the execution of the decrees. Consequently, it dismissed the Execution Applications. In appeals preferred against the same, the District Judge, Ongole, by separate judgments with identical conclusions on 12.03.2009 and 13.03.2009 allowed the appeals in part. The learned District Judge opined that the third party-claimants can file their claims under Order 21, Rule 99 of the C.P.C., if they have independent rights, which applications have to be decided as if they are suits without the necessity of filing independent suits. It also observed that a third party-claimant need not wait till actual dispossession to make a claim and on facts of the present case, the learned District Judge observed that the claim of the petitioners is not independent as third parties. But, they are claiming only under Ramakoteswara Rao, who was a party to the suits, and they could have been added as legal representatives of Ramakoteswara Rao in the suits themselves. When the petitioners are claiming as legal heirs of Ramakoteswara Rao and not claiming any independent rights over the property, the efficacious remedy against the judgments and decrees in the suits was considered by the learned District Judge to be by way of filing third party appeals to set aside the decrees on obtaining leave from the Court. While observing that the judgments and decrees in question may not be void, but may at best be not binding on the petitioners who are not brought on record, the learned District Judge considered the moving of claim petitions to be not the appropriate remedy and referred to the precedents relating to the filing of appeals by third parties with the leave of the Court. The learned District Judge, therefore, concluded that the petitioners should be left open to prefer third party appeals with leave of the Court in each of the matters. Incidentally, the learned District Judge also observed that the trial Court’s observations dismissing the claim petitions are not being interfered with though the reasons assigned by the trial Court in dismissing the claim petitions are per se unsustainable and baseless. Again, the learned District Judge allowed the appeals partly to the extent of setting aside the Executing Court’s observations in dismissing the claim petitions and confirming the dismissal of the claim petitions. While referring the petitioners to the remedy of third party appeals with leave, the learned District Judge also made the observations of the Executing Court in dismissing the claim petitions not binding on the parties in any such further proceedings. Learned District Judge also granted a month’s time to enable the petitioners to prefer such third party appeals. The appellants challenged the said judgments of the first appellate Court in these Second Appeals contending that the scope of the enquiry under Order 21, Rule 97 of the C.P.C. was not properly appreciated and the appellants could not have been obliged to file any appeals as third parties. They contended that substantial questions of law arise herein including the question about any obligation for the appellants to file third party appeals without maintaining their claim petitions. Sri P.Sriraghuram, learned counsel representing Sri A.M.Srinivasa Rangachary, learned counsel for the appellants and Sri Meharchand Nori, learned counsel for all the respondents are heard. The substantial questions of law, which arise for determination in these second appeals, are: 1. Whether the appellants can be compelled to prefer third party appeals seeking leave of the Court and would, therefore, be compelled not to pursue their claim petitions under order 21, Rule 97 of the C.P.C.? 2. To what relief? QUESTIONS 1 AND 2: The factual background leading to the Second Appeals is not seriously in dispute and the appellants herein claiming to be the wife and children of Ramakoteswara Rao claimed to be in possession and enjoyment of the subject house, which is the subject of the four Execution Applications, in their own right. They claimed to be the successors-in-interest of Ramakoteswara Rao, whose rights are uneffected by the alleged Wills, on which the suits are based and the judgments and decrees therein to which they were not parties, made them file the Execution Applications even before there was any physical dispossession of the petitioners from the subject property. Their claim is resisted by the respondents to the Execution Applications on the basis of the Wills executed by Adimamba, rights flowing from which were recognized and upheld by the judgments and decrees under execution. Irrespective of the truth and merits of the rival contentions, ex facie, the right of the appellants to approach the Executing Court with appropriate applications under Order 21, Rule 97 of the C.P.C. (or even Rule 99 of Order 21 C.P.C.), as observed by the first appellate Court, cannot be seriously in doubt. The Executing Court rightly followed the binding precedent from this Court which laid down that a third party is competent to come forward with an application under Order 21, Rule 97 or Rule 99 even on the apprehension of dispossession, which has to be adjudicated as if it was a suit. It is seen that the conclusion of the Executing Court in this regard was not seriously deviated from by the appellate Court. But, its reasons for non suiting the appellants are different. Though the Executing Court also incidentally observed in its order that the petitioners did not take any steps to get themselves impleaded as the legal representatives of Ramakoteswara Rao after his death in spite of their knowledge about the suits and that the petitioners did not challenge the judgments and decrees in question in any manner, the Executing Court did not state its conclusion about the incompetency of the petitioners to raise any plea in execution proceedings to be on the ground of their remedy against such judgments and decrees being only through third party appeals with the leave of the Court. However, the first appellate Court was of the opinion that the appellants have an efficacious remedy, in respect of their claim to the estate of Ramakoteswara Rao and possession and enjoyment of the subject property, by way of preferring third party appeals with leave of the Court. The decisions referred to by the first appellate Court were in respect of the competency of a third party to prefer an appeal with the leave of the Court, if his rights are obviously affected and the normal rule was reiterated even therein to be the non-maintainability of an appeal at the instance of the third party, unless the interest of such third party in the property covered by the suit was shown to be adversely affected by the judgment of the suit. While it is true that it might have been open to the appellants to approach the first appellate Court with appropriate applications for leave to appeal and prefer third party appeals on obtaining such leave, no provision or principle could be identified by which the appellants can be compelled to take recourse to such remedy alone on the questions whether the appellants succeeded Ramakoteswara Rao in law or in fact and whether they are in possession and enjoyment of the subject property in their own right and whether they can resist the execution of the decrees in question successfully. These questions may not appear to have any bearing on the competence to file appropriate applications under Order 21, Rules 97 and 99 even before actual dispossession and in the absence of any provision or principle, compelling the appellants to file third party appeals only and not claim petitions is impermissible. The invoking of such a course of action by the appellate Court is unsustainable. The Executing Court in its common order had gone into in detail into the questions of the maintainability of the petitions under Order 21, Rule 97 of the C.P.C. and also the entitlement of the appellants to resist the execution of the decrees, though for its own other reasons, it negatived the claims. Though the first appellate Court observed in the impugned judgments that the reasons assigned by the Executing Court in dismissing the claim petitions per se are unsustainable or baseless and also stated further that the observations in dismissing the claim petitions were set aside and such observations will not be binding on the parties in any further proceedings to which the appellants may take recourse to with the leave of the Court through third party appeals, it was not clear from the impugned judgments as to what reasons assigned by the Executing Court for dismissing the claim petitions are unsustainable and baseless and for what reasons. It was not also clear as to what observations of the Executing Court in dismissing the claim petitions were set aside. That apart, the first appellate Court had not gone into the merits and contentions of the appellants or the respondents and when it could not have compelled the appellants to take recourse to third party appeals, the matter has to be remitted back to the first appellate Court for a determination on merits on the questions in controversy between the parties. As the appeals are being allowed and the matters are being remanded on a preliminary issue, the parties can be directed to bear their own costs in all the Second Appeals. Therefore, the judgments and decrees in Appeal Suit Nos.71 of 2008, 72 of 2008, 73 of 2008 and 74 of 2008, dated 12.3.2009 and 13.3.2009 respectively are set aside and the appeal suits are remanded to the Court of District Judge, Ongole for determination on merits in accordance with law after every reasonable opportunity to both parties and the Second Appeals are allowed accordingly without costs. _____________________ G.BHAVANI PRASAD,J 7th July, 2010. PNV [1] 2004(6) ALT 525,