IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 Ex.SA.No. 16 of 2008() ---------------------- AS.43/2008 of SUB COURT,NEYYATTINKARA OS.339/1969 of II ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS /CLAIMANTS -------------------- 1. BABU RAJ, S/O. MARSHAL, MARAVANCHERI VEEDU, MOOVANKARA DESOM, THAVANOOR VILLAGE, MALAPPURAM AND ALSO HAVING RESIDENCE AT THUMARICHAL BHAVAN, MALAYINKEEZHU DESOM, MALAYANKEEZHU VILLAGE. 2. HERBERT MARSHALL, PRIEST, ST. PAUL LUTHERIN CHURCH, RAVIPURAM, ERNAKULAM DISTRICT, ALSO HAVING RESIDENCE AT THUMARICHAL DEENA VILASOM,-D0- DESOM, -DO VILLAGE. 3. PONNAMMAL MEENAKSHI AMMAL, THUMARICHAL HARI BHAVAN, DO DESOM, DO VILLAGE. 4. V.S. HARI KUMAR, S/O. VASUDEVAN, MULLASSERI VEEDU, THUMARICHAL, DO DESOM, DO VILLAGE. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON RESPONDENT(S); --------------- 1. VASANTHI DEVI, HOUSE NO. TC 24/963, THAIKKADU MICHIL ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM. -:2:- 2. RAMANI AMMA, VRINDAVAN, T.C 26/528, SECRETARIAT WARD, VANCHIYOOR, THIRUVANANTHAPURAM. 3. BINDHU RAMAKRISHNAN, -DO- 4. INDU SHARMA, -DO- 5. SINDU BOOSHAN, -DO- 6. JOYCE, W/O. DEVANESAN, NEDMPURATHU VEEDU, THUMARICHAL, MALAYINKEEZHU DESOM, DO VILLAGE. ADV. SRI.M.M.ABDUL AZIZ (SR.) FOR R1 TO 5 SRI.M.A.ABDUL HAKHIM FOR R1 TO 5 SRI.JYOTHISH.J.KALLINGAL FOR R1 TO 5 THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/11/2008, ALONG WITH EXSA NO. 17 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “CR” V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Ex. S.A. Nos. 16 and 17 of 2008 * * * * * * * * * * * * * * * * * * Dated: 14-11-2008 JUDGMENT The claim petitioners in E.A. Nos. 731 and 842 of 2006 in E.P. No. 95 of 1982 in O.S. No. 339/1969 on the file of the II Addl. Munsiff, Neyyattinkara, are the appellants in these Execution Second Appeals filed under Sec. 100 read with Order 42 R. 1 and Order 21 R. 103 C.P.C. 2. At the time of hearing on admission of these Second Appeals, the respondents/decree holders who had lodged caveats were also heard. These Second Appeals were heard on the following questions of law:- i) Were the courts below justified in holding that while dealing with a petition under Order 21 R. 97 C.P.C. the executing court is not entitled to go behind the decree to record a finding as to whether the plaintiff/decree holder is entitled to delivery of possession as against a stranger obstructor ? Ex. S.A. Nos. 16 and 17 of 2008 -:2:- ii) In proceedings under Order 21 Rule 97 C.P.C. whether the courts below were justified in taking the view that where the delivery is obstructed by a stranger claiming a right independent of the judgment debtor, the burden is on the obstructer to prove that he has a better title than that of the decree holder ? iii) In an adjudication under Order 21 Rule 99 C.P.C. at the instance of a stranger to the decree, while determining all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding, can the executing court which has not chosen to order removal of such stranger under O. 21 Rule 35 (1) C.P.C., proceed on the assumption that the decree holder need only show that the decree for possession is his title and it is for the stranger obstructer to prove that he has better title ? THE FACTUAL SETTING 3. The essential facts, shorn of unnecessary details are the following :- The suit O.S. No. 339 of 1969 was filed by the predecessors- in-interest of respondents 1 to 5 in these appeals against the legal Ex. S.A. Nos. 16 and 17 of 2008 -:3:- representatives of one Krishna Pillai for redemption and recovery of possession of an extent of 3.59 Acres of land comprised in Survey Nos. 131/8 and 137/2 of the former Marukil Village which is presently the Malayinkizh Village. The mortgage which was sought to be redeemed was a puisne mortgage of the year 1117 M.E. corresponding to the year 1942. The plaintiffs contended that their mother had derived title to the properties under a sale deed of 1110 M.E. corresponding to the year 1935. The plaintiff's mother who did not have possession over the properties had allegedly executed the puisne mortgage in favour of Krishna Pillai authorising him to redeem the prior mortgage. Subsequently, another puisne mortgage was executed in favour of the original second defendant by name Kuttan Nair who was the son of the said Krishna Pillai. It was alleged that Krishna Pillai had redeemed the prior mortgages and had stepped into the shoes of the mortgagee by reducing the property to his possession. The suit was thus filed by the plaintiffs against the legal representatives Ex. S.A. Nos. 16 and 17 of 2008 -:4:- of Krishna Pillai for redemption of the puisne mortgage of the year 1117 M.E. and for recovery of possession. The defendants in the suit remained ex parte. A preliminary decree for redemption and recovery of possession was passed by the trial court on 30- 09-1969. Later, a final decree was also passed on 8-10-1976 . Subsequently, execution was taken out. Out of the plaint schedule properties 2.97 acres are comprised in Survey No. 131/8 and the same is situated on the northern side of a road and the remaining 62 cents of land is comprised in Survey 137/2 and it lies to the south of the road. The two claim petitions were filed with regard to portions of the said 62 cents of land lying on the southern side of the road. The decree -holders have not yet taken delivery of the larger extent of the property lying to the north of the road. The contention of the claim petitioners in E.A. 731 of 2006 (appellants in Ext.S.A. 16 of 2008) was that the said 62 cents comprised in Survey No. 137/2 of Malayinkizhu Village situated to the south of the road belonged to one Masilamony, that on his Ex. S.A. Nos. 16 and 17 of 2008 -:5:- death the said property devolved on his children Kali Mariya, Zachariaya and Yohannan, that the said children partitioned the properties in the year 1120 M.E. corresponding to the year 1945 whereby Kali Mariya was allotted the western 20 cents, Zachariah was allotted middle 21 cents and Yohannan was allotted the eastern 21 cents, that the partition deed recited that a portion of the property was outstanding on mortgage right in favour of Bhagavathy Lakshmi under a mortgage deed of 1113 M.E. corresponding to the year 1938, that the first claimant got title and possession over 6 1/8 cents from the middle portion allotted to Zacharia, that the said Zacharia redeemed the prior mortgage in favour of Bhagavathy Lakshmi in the year 1124 M.E. corresponding to the year 1949, that thereafter Zacharia gifted 11 cents to his daughter in the year 1955 that she constructed a building thereon by name “Deena Vilasom” and started residing there with her family, that from out of the said 11 cents she gifted 6 1/8 cents to her son the first claimant (Baburaj) in the year 1989 Ex. S.A. Nos. 16 and 17 of 2008 -:6:- and that Baburaj put up a terraced building in that property. The second claim petitioner who is the 2nd appellant in Ex. S.A. 16 of 2008 contended that an extent of property including the house “Deena Vilasom” was gifted to him by his mother who is the daughter of Zacharia and he has constructed a house thereon in the year 1960 and that he has been residing in the said house paying the building tax, electricity bills etc. even prior to the filing of the suit. The 4th claimant who is the 3rd appellant in Ex. S.A. 16 of 2008 contended that 16 cents within the 21 cents allotted to Yohannan was set apart to one Samuel in a partition of the year 1972, that the said Samuel sold the property to the 4th claimant who has constructed a terraced building in the property and that he has been paying the building tax, electricity bills etc. The 5th claimant who is the 4th appellant in Execution Second Appeal 16/2008 contended that 5 ½ cents of land which is part of the 21 cents allotted to Yohannan was in the possession of the 4th appellant who had put up a residential building and was paying Ex. S.A. Nos. 16 and 17 of 2008 -:7:- land revenue and electricity bills. The claim petitioner in E.A. 842 of 2006 who is the appellant in Ex. Second Appeal 17 of 2008 contended that Kali Mariya who was one of the children of Masilamani and to whom 20 cents on the western side was allotted, had three children by name Anose, Yohannan and Jhanappu, that Jhanappu had 5 children by name Rasalamma, Sarasamma, Dennison, David and Albert, that the claim petitioner is the son of Rasalamma, that Sarasamma sold her right over the estate in favour of the appellant's mother Rasalamma as per Ext.A31 sale deed dated 8-1-1963 that Rasalamma thus got 1/3 right over the 20 cents of land allotted to Kali Mariya, that after the death of Yohannan his widow and children sold their rights in favour of the appellant's mother Rasalamma as per Ext.A32 sale deed dated 17-6-1961, that Rasalamma thus got 2/3 right over the land allotted to Kali Mariya, that the remaining 1/3 right belonging to Anose devolved on his only son by name Titus who sold his right to one Ganesan Chettiar as per Ext.A33 sale deed dated 30- Ex. S.A. Nos. 16 and 17 of 2008 -:8:- 6-1959, that Rasalamma who obtained absolute title over the estate of Kali Mariya constructed a residential building in the property by name “Frank House”, that Rasalamma later executed Ext.A35 settlement deed in respect of 8 cents in favour of the appellant in Ext.S.A. 17/08, that the appellant constructed another terraced building and has been residing there paying the land revenue etc. The delivery was resisted by the appellants in these Ex. Second Appeals putting forward the above claim independent of the rights of the judgment debtors. The appellants/claimants produced Exts. A1 to A41. The decree holders produced Ext.B1 Ottukuzhikanom deed of 1113 M.E. and 3 re-survey plans. The Executing Court as per common order dated 10-3-2008 dismissed both the claim petitions. On appeals preferred as A.S. Nos. 43 and 45 of 2008 , the lower appellate court as per common judgment dated 19-7-2008 dismissed those appeals. Hence, these Execution Second Appeals. 4. I heard Advocate Sri. P.B. Krishnan, the learned Ex. S.A. Nos. 16 and 17 of 2008 -:9:- counsel appearing for the appellants in Ex. S.A. 16 of 2008, Sr. Advocate Sri. V. Chithambaresh, appearing for the appellant in Ext.S.A. 17 of 2008 and Sr. Advocate Sri. M.M. Abdul Aziz, appearing for the decree holders. THE DECREE HOLDERS' CONTENTIONS 5. Advocate Sri. Abdul Aziz, the learned counsel appearing for the decree holders made the following submissions in opposition to the Second Appeals:- This is a suit filed in the year 1969 and there has been several litigations between the parties and the case had come up to this Court on several occasions. There is a decree for redemption and possession of the suit property which was outstanding on mortgage. It has been held by this Court in Thakamma v. Mamachan - 1983 KLT 487 that in the case of a mortgage decree the property belongs to the decree holder. Likewise, the law is well settled that the Executing Court cannot go behind the decree. Vide Devasia Philipose v. Venkitta Subba Iyer Ex. S.A. Nos. 16 and 17 of 2008 -:10:- Harihara Iyer - 1952 KLT 289, Govinda Pillai Sankara Pillai v. Krishna Pillai Kesava Pillai - 1953 KLT 449 and Kunju Kunju Chandran v. Raghavan - 2005 (3) KLT 644. At page 6 of the memorandum appeal it is alleged that the property belonged to one Masilamani. This contention has not been proved. In fact, the 10th defendant in the suit had set up a claim over 75 cents of land tracing his title to the very same Masilamani. As per the order dated 28-11-2001 passed by this Court in C.R.P. 2004 of 1995 this Court rejected the said claim of the 10th defendant. This Court directed the disposal of the E.P. within three months of that date. On a subsequent occasion also this Court had in C.R.P. 2864 of 2002 observed that it was high time that a quietus was given to this litigation lest the public loose faith in our civil justice administration system. On a still another occasion this Court while disposing of W.P. (C) No. 7538 of 2004 on 23-5-2006 observed that merely for the reason that a Commissioner is appointed, the Executing Court cannot delay the execution. Again in the Ex. S.A. Nos. 16 and 17 of 2008 -:11:- judgment dated 27-7-2006 in W.P. (C ) No. 18767 of 2006 it was observed that it was open to the decree holder to make a request before the Executing Court to effect delivery of the disputed properties identified by the surveyor. Still the entire plaint schedule properties remain to be delivered over to the decree holders. On the merits, both the courts have concurrently held that the decree schedule properties are not covered by Ext.A1 partition and that the properties covered by Ext.B1 which is a prior mortgage referred to in Ext.A1 and the properties covered by Ext. A1 partition deed are different. If so, the obstruction to the delivery was without any valid ground. The said finding is a pure finding of fact from which no Second Appeal will lie for want of a substantial question of law. It is not enough that the obstructors are found in possession but they should further show that they have a right to possession independent of the Judgment debtor and which right is not and cannot be affected by the decree. (Vide Ittiyachan v. Tomy - 2001 (3) KLT 117). Rules 97 to 99 of Ex. S.A. Nos. 16 and 17 of 2008 -:12:- Order 21 C.P.C. is a complete Code by itself. The Apex Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Another - (1997) 3 SCC 694 at para 9 observed in unmistakable terms that what has to be adjudicated is the right, title and interest of the obstructionist. As far as the decree holder is concerned, the decree for delivery of possession is his title on the basis of which he can seek delivery of the property and it is for the obstructor to make out a case that he has better title to keep the decree holder at bay. The courts below have approached this question in the right perspective. This Court should not interfere with the concurrent findings recorded by the courts below. JUDICIAL EVALUATION 6. I am afraid that I cannot agree with the above submissions made on behalf of the decree holders. This is not a case where the delivery of the properties so far as the 62 cents is concerned was obstructed without any bona fides or even without any prima facie case. Had it been otherwise, the executing Court Ex. S.A. Nos. 16 and 17 of 2008 -:13:- would have straightaway ordered the removal of the obstructor under Order 21 Rule 35 C.P.C. The very fact that the executing court did not act under Order 21 Rule 35 C.P.C. will indicate that the court was conscious about the fact that the matter required adjudication or at least, an investigation which can be had only by recourse to Order 21 R.97 C.P.C. 7. Where the decree is for possession of immovable property and the holder of the decree is desirous of executing it, he should apply to the court which passed the decree within the meaning of Section 38 C.P.C read with order 21 Rule 10 C.P.C. Such application for execution has to be in the form of a written application as enjoined by Order 21 Rule 11(2) C.P.C. Such Court, on receiving the application for execution, may order execution of the decree by delivery of the property specifically decreed as provided under Section 51 C.P.C read with Order 21 Rule 35 C.P.C. Order 21 Rule 35(1) C.P.C reads as follows:- Ex. S.A. Nos. 16 and 17 of 2008 -:14:- Rule 35, Decree of immovable property - (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on this behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property “ 8. Under Order 21 Rule 35 C.P.C the executing court directs delivery of possession of the property to the decree holder or his agent in that behalf and if necessary, the Court will direct delivery of possession by removal of the judgment debtor or any other person bound by the decree and who refuses to vacate the property. “A person bound by the decree” within the meaning of Order 21 Rule 35 C.P.C includes the judgment debtor and a person claiming through or sponsored by the judgment debtor. The said expression may also include a person who claims to be in possession in his own right independently of the judgment debtor, provided that the claim of such person is ex facie unacceptable and is not made in good faith and does not appear to necessitate an investigation. In such a case, the court has the power under Order Ex. S.A. Nos. 16 and 17 of 2008 -:15:- 21 Rule 35 C.P.C to remove the person who offers resistance or makes obstruction to the delivery of the immovable property. But where the holder of a decree for possession of immovable property or a court auction purchaser is resisted or obstructed in obtaining possession by any person on a ground which appears to necessitate an investigation, then the court cannot direct removal of such resistor or obstructor under Order 21 Rule 35 C.P.C. In such a contingency, the court will have to have recourse to Order 21 Rule 97 C.P.C by proceeding to adjudicate upon an application filed by the decree holder complaining of such resistance or obstruction (vide Ragho Prasad v/s.Pratap Narain Agarwal - (1969) All LJ 929 - Varkey Joseph v. Board of Revenue. AIR 1978 Kerala 149) Chandrika v. Gangadharan - 1983 KLT 953 and Raman v. Karthikeyan - 1984 KLT 1071). Order 21 Rule 97 C.P.C reads as follows:- “Resistance or obstruction to possession of immovable property- 1. Where the holder of a decree for the possession of Ex. S.A. Nos. 16 and 17 of 2008 -:16:- immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction. 2. [Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained”. 9. The result of such adjudication is indicated in Order 21 Rule 98 C.P.C which reads as follows:- “Orders after adjudication - (1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule(2); a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during Ex. S.A. Nos. 16 and 17 of 2008 -:17:- the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.” 10. In the case of a person other than the judgment- debtor or some other person at his instigation or on his behalf or a transferee pendente lite as are mentioned in Order 21 Rule 98 (2) C.P.C, the provision applicable is Order 21 Rule 99 C.P.C. Such persons may be total strangers to the decree and claiming an independent right in themselves. Going strictly by Order 21 Rule 99 C.P.C, such persons get a right to file an application to have their claims adjudicated only after they are dispossessed by the decree holder or court auction purchaser by taking delivery of the property. Order 21 Rule 99 C.P.C reads as follows:- Dispossession by decree-holder or purchaser (1) Where any person other than the judgment- debtor is dispossessed of immovable property by the holder Ex. S.A. Nos. 16 and 17 of 2008 -:18:- of a decree for the possession of such property or where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 11. Until the Apex Court gave an authoritative pronouncement on the real scope of Order 21 Rule 99 C.P.C., the preponderance of judicial opinion was that a stranger to the decree and answering the description under Order 21 Rule 99 C.P.C could not object to the delivery of the property in execution, before delivery is effected and that his remedy was either to file a suit before delivery or to wait until he is dispossessed so as to make an application under Order 21 Rule 99(1) C.P.C. Vide Prabhakaran v. Kuttian Prakashan - 1985 KLT 225 and Augustin and Company v. Damodaran - 1991 (2) KLT (SN) 11. In other words, such a person had no right to obstruct the delivery in anticipation of dispossession in execution of the decree. But now after the decision of the Supreme Court in Brahmadeo Ex. S.A. Nos. 16 and 17 of 2008 -:19:- Chaudharay v. Rishikesh Prasad Jaiswal - 1997(3) SCC 694, such a person need not wait until he is dispossessed in execution of the decree so as to stake his claim. Such a person also can resist or obstruct the delivery and thereupon the Court is obliged to adjudicate the application, if any, filed by the decree holder or auction purchaser under Order 21 Rule 97 C.P.C complaining of such resistance or obstruction. If, instead of complainaing of resistance, the decree holder or auction purchaser applies for re- issue of warrant for delivery of possession, then it could be treated as an application for removal of obstruction under Order 21 Rule 97 C.P.C. and the Court will have to adjudicate upon the rival claims. (Vide - Paragraphs 6 and 11 of Brahmadeo Chaudhari's Case ( supra) ). Thus, now after the interpretation placed on Rule 99 of Order 21 C.P.C, a purported stranger to the decree has a right of obstruction or resistance even at the pre-delivery stage and upon such obstruction or resistance, the decree-holder or auction purchaser will have to move the court under Order 21 Rule Ex. S.A. Nos. 16 and 17 of 2008 -:20:- 97 C.P.C. whereupon the Court will have to adjudicate upon the rival claims within the ambit of Rule 101 of Order 21 C.P.C. Such a stranger can also apply under Order 21 Rule 99