Bapputty's/o.Chattacheentepurakkal Ismail v. Thelath Ahammed and Hajira Mol

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 WP(C).No. 19413 of 2010(O) -------------------------AGAINST THE ORDER DATED 11/06/2010 ON IA.2072/10 IA.238/10 IN OS.105/1996 of PRINCIPAL SUB COURT,TIRUR .................... PETITIONER(S): --------------- BAPPUTTYS/O.CHATTACHEENTEPURAKKAL ISMAIL, TIRUR TALUK, RAYIRAMANGALAM AMSOM, TANUR NAGARAM DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): --------------- 1. THELATH AHAMMAD , 50 YEARS, S/O.ALASSAN, TIRUR TALUK, RAYIRIMANGALAM AMSOM DESOM PO, RAYIRIMANGALAM, MALAPPURAM DISTRICT, PIN 673633. 2. HAJIRA MOL 51 YEARS, CHATTACHEENTEPURAKKAL, TIRUR TALUK, RAYIRIMANGALAM AMSOM DESOM PO, RAYIRIMANGALAM, MALAPPURAM DISTRICT,PIN 673633. ADV. SRI.SAJU.S.A FOR R1 SRI.K.C.KIRAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.19413/2010 ## APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF ORDER DATED 11.6.2010 IN IA NO.2072/2010 IN IA NO.238/2010 IN OS 105/1996 OF THE COURT OF SUBORDINATE JUDGE OF TIRUR //TRUE COPY// ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------W.P.(C) No.19413 of 2010 -------------------------------------Dated this the 5[th] day of August, 2010.** ## **JUDGMENT** This Writ Petition is in challenge of Ext.P1, order passed by learned Sub Judge, Tirur on I.A.No.2072 of 2010 in O.S.No.105 of 1996 of that court. Respondent No.1 on the strength of an agreement for sale allegedly executed by respondent No.2 instituted O.S.No.105 of 1996 for a decree for specific performance and obtained decree on 25.02.1999. Though respondent No.2 tried to challenge that judgment and decree in Appeal and Second Appeal, both failed and the decree for specific performance has become final. Thereafter respondent No.1 filed I.A.No.711 of 2006 to get sale deed executed and on respondent No.2 declining, court executed sale deed in favour of respondent No.1. Thereafter respondent No.1 filed I.A.No.238 of 2010 to evict respondent No.2 from the decree schedule property. On respondent No.2 obstructing delivery, learned Sub Judge ordered police assistance. It is while so, that petitioner, husband of respondent No.2 came into the picture, He filed I.A.No.2072 of 2010 purporting to be one for his impleadment in the suit but ofcourse claiming that he purchased the property with his funds, for his benefit in the name of respondent No.2. That application was opposed by respondent No.1 contending that petitioner has no right, title, interest or possession in the suit property. When the matter came up before learned Sub Judge, counsel for petitioner stated that the application may be treated as one under Order XXI **WP(C) No.19413/2010** 2 Rule 97 of the Code of Civil Procedure (for short, “the Code”) and to substantiate the contention that a claim to the property in the form of anticipatory obstruction can be sustained under Order XXI Rule 97 of the Code, learned counsel for petitioner placed reliance on the decision in **Tanzeem E. Sufia v. Bibi** **Haliman (AIR 2002 SC 3083)** . That contention of petitioner was accepted by learned Sub Judge who proceeded to consider the application on merit under Order XXI Rule 97 of the Code. Learned Sub Judge observed that the only contention raised by petitioner is that he has spent money for purchasing the property but, there is no case that he purchased the property for himself. Learned Sub Judge observed that no evidence is adduced by petitioner in support of his contention that he has title and possession over the property, found that the application is not sustainable and accordingly dismissed it (I.A.No.2072 of 2010). That order is under challenge in this Writ Petition. Learned counsel for petitioner contended that assuming that the application is under Order XXI Rule 97 of the Code it was incumbent on learned Sub Judge to hold an enquiry as contemplated under Rule 101 of Order XXI of the Code. According to the learned counsel there is no adjudication of the question raised by the petitioner and hence the finding of the learned Sub Judge that petitioner has no independent title over the property cannot be sustained. Learned counsel requested that the matter may be remitted to the court of learned Sub **WP(C) No.19413/2010** 3 Judge for proper enquiry. In response it is contended by learned Senior Advocate appearing for respondent No.1 that this Court shall not accept the Writ Petition for the reason that a statutory remedy by way of appeal is available to the petitioner since the order under challenge has the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree as provided under Order XXI Rule 103 of the Code. 2. I shall refer to the preliminary objection raised by the learned Senior Advocate as to the sustainability of the Writ Petition. No doubt, even when statutory remedy is available it is within the power of this Court to exercise supervisory jurisdiction under Article 227 of the Constitution. But, normally when a statutory remedy is available to the party this Court shall be slow to exercise that jurisdiction. 3. Petitioner preferred I.A.No.2072 of 2010 as if it is an application to implead him in the suit ofcourse making a claim over the property but as seen from paragraph No.9 of the order under challenge, learned counsel for petitioner in unambiguous terms represented that petition may be treated as one under Order XXI Rule 97 of the Code in that in anticipation of delivery of the property, petitioner has asserted an independent right over the property. In support of that contention reliance was also placed on the decision in **Tanzeem E. Sufia v.** **WP(C) No.19413/2010** 4 **Bibi Haliman** (supra). That contention of the learned counsel for petitioner was accepted by the learned Sub Judge and the application was treated as one under Order XXI Rule 97 of the Code. Though, learned counsel for petitioner has contended that the application should be treated as one under Section 151 of the Code and hence the order is not subject to appeal as provided under Order XXI Rule 103 of the Code, in view of the submission made by counsel for petitioner in the court below as referred to in paragraph No.9 of the impugned order and since a right independent of the judgment debtor/respondent No.2 is asserted over the schedule property, I am unable to accept that contention. An anticipatory obstruction can be entertained in the circumstances only under Rule 97 of Order XXI of the Code. 4. Learned counsel has raised yet another argument to sustain the Writ Petition. According to the learned counsel, this being a decree for specific performance question of application of Rules 97 to 101 of Order XXI of the Code did not arise. According to the learned counsel, there is no decree for possession and what is granted is only a decree for execution of the sale deed in favour of respondent No.1. But that contention cannot be sustained in the light of the decision of this Court in **Padmaja v. Sajeev (2006 (1) KLT 265)** . There, it has been held that Order XXI Rule 97 of the Code could apply even in the matter of a decree for specific performance. It has been held that a third party **WP(C) No.19413/2010** 5 who resisted delivery of immovable property on the basis of a decree for specific performance could maintain an application for deciding his rights, he need not wait till he is dispossessed and that executing court is required to determine the question of right, title and interest of the obstructor. It could not be said that a third party has no right to object to the execution of the decree before he is dispossessed. True, there is no execution proceeding as such in the case of a suit for specific performance, for getting the document executed or for delivery of possession. Still the process by which the decree is implemented by whatever nomenclature it is called, is also a proper stage where a third party who objects to the decree could raise his objection. In that view of the matter it was held that Rules 97 to 101 of Order XXI would apply to a proceeding in a suit for specific performance as well, though such application is not filed in an execution petition but is filed in a proceeding under Section 28(2) of the Specific Relief Act. I do not find any reason to differ from that view. Therefore, the contention that in so far as there is no execution of the decree for possession, provisions of Rules 97 to 101 of Order XXI of the Code cannot apply, cannot stand. 5. Coming back to the question whether a statutory remedy of appeal is available to the petitioner, I stated that in the nature of the contentions advanced in I.A.No.2072 of 2010 and in the light of the decision of the Supreme Court referred to in paragraph No.9 of the order under challenge which permits an anticipatory obstruction by a party who claims independent right over the **WP(C) No.19413/2010** 6 property without waiting to be dispossessed, I.A.No.2072 of 2010 has to be treated as one under Order XXI Rule 97 of the Code. Rule 101 of the said Order states that all questions including questions relating to right, title or interest in the property arising between parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application shall be determined by the court dealing with the application. In otherwords, questions raised in an anticipatory obstruction which is admitted for consideration under Rule 97 of Order XXI of the Code is required to be determined in accordance with Rule 101 of the said Order. Rule 98 of Order XXI states that on determination of questions referred to in Rule 101 the court in accordance with the provisions of Sub-rule (2) shall make an order allowing the application and directing that the applicant be put into possession of the property or dismissing the application or pass such other order as in the circumstances of the case it may deem fit. Then comes Rule 103 of Order XXI which states that where any application has been adjudicated upon under Rule 98 or Rule 100 the order shall be subject to the same conditions to appeal or otherwise as if it were a decree. It follows that if an anticipatory obstruction has been adjudicated under Rule 98, the order is subject to an appeal in view of Rule 103 of Order XXI. 6. When faced the above situation learned counsel for petitioner has invited my attention to the decision of the Supreme Court in **Deep Chand v.** **WP(C) No.19413/2010** 7 **Land Acquisition Officer (AIR 1994 SC 1901)** to contend that unless there is an enquiry into the disputed questions, it cannot be said that there was an adjudication of the dispute. According to the learned counsel, since no enquiry was conducted, there was no 'adjudication' of the dispute and hence Rules 98 and 103 of Order XXI would not apply. The decision referred to above related to a reference under the Land Acquisition Act. Question considered was whether an order passed by the reference court under Section 49(1) of the Land Acquisition Act could be treated as a decree as defined under Section 2(2) of the Code. It was held that in so far as there was no adjudication the decision under Section 49(1) of the Land Acquisition Act cannot be said to be a formal expression of an adjudication conclusively determining rights of parties and falling under Section 2(2) of the Code and hence that adjudication is not a decree. Learned counsel has also referred to me the meaning of the word “adjudication” in Black's Law Dictionary (quoted in **Deep Chand v. Land Acquisition Officer** ) as a “legal process of resolving a dispute, the formal giving or pronouncing a judgment or decree in a Court proceedings; also the judgment or decision given. The entry of a decree by a Court in respect to the parties in a case. It implies a hearing by a Court after notice, of legal evidence on the factual issue(s) involved”. Learned counsel for petitioner contended that Rule 101 of Order XXI of the Code contemplates determination of the question **WP(C) No.19413/2010** 8 under Order XXI Rule 97 of the Code. But in this case no evidence was recorded. What was decided was only jurisdictional aspect of the matter and not the adjudicatory aspect of the matter. Reliance is placed on the decision of ## Supreme Court in **Carona Ltd. v. Parvathy Swaminathan & Sons** **[(2007) 8 SCC 559]** to draw the distinction between adjudicatory and jurisdictional aspects. No doubt learned Sub Judge has not recorded evidence in the case but, nonetheless the order amounts to an adjudication of the dispute as contemplated under Rule 98 of Order XXI of the Code. If the parties have not adduced evidence the matter has to be decided without evidence. In P.Ramanatha Iyer's Law Lexicon, meaning of the word 'adjudication' is given as “to hear or try and determine, as a court; to settle by judicial decree; to adjudge.” Therefore the mere fact that no evidence was let in before learned Sub Judge and the decision of the learned Sub Judge is not based on evidence does not mean that decisions taken by the learned Sub Judge falls short of an adjudication as contemplated under Rule 98 of Order XXI of the Code. For all practical purposes order passed by the learned Sub Judge comes under Rule 103 of Order XXI of the Code which on account of the said provision is appealable as if it were a decree. I must bear in mind that though learned Sub Judge has found that petitioner is claiming under respondent No.2, judgment debtor in which case, the question of application of Rule 103 of Order XXI of the **WP(C) No.19413/2010** 9 Code may not arise in that person claiming under judgment debtor is bound by the decree and hence question of his obstruction does not arise. But in this case petitioner is contesting finding of learned Sub Judge that he is claiming under respondent No.2/judgment debtor and even in this proceeding his attempt is to assert independent right over the suit property. In that view of the matter I accept the contention raised by learned Senior Advocate, that the impugned order is appealable under Rule 103 of Order XXI of the Code. 7. Learned counsel for petitioner has also referred me to the decision in **Binapani Paul v. Pratima Ghosh[(2007) 6 SCC 100]** in particular paragraph No.47. That decision related to Benami Transactions (prohibition) Act. In the case on hand the purchase of property was allegedly made in the name of respondent No.2 for and on behalf of petitioner who was abroad and utilising his funds. However having found that an appeal is the proper remedy I do not consider it necessary or proper to go into the question whether claim of petitioner is sustainable on its merit and whether petitioner has to be given opportunity to adduce evidence in support of his claim. Those questions are to be decided in a properly constituted appeal if any preferred. 8. In the light of what I have stated, I do not consider it necessary to exercise supervisory jurisdiction conferred on this Court under Article 227 of the Constitution against the impugned order. I hold that Writ Petition is liable to be dismissed. I make it clear that it will be open to the petitioner to challenge the **WP(C) No.19413/2010** 10 impugned order before the statutory forum as provided under law. In case preferring of the appeal is beyond the prescribed time, it will be open to the petitioner to seek condonation of delay or exclusion of time during which this proceeding was pending in this Court. Since learned counsel for petitioner has submitted that petitioner intends to prefer an appeal before the appropriate forum and requested that delivery of property may be stayed for some time to enable the petitioner to prefer such appeal, interim order of stay granted by this Court is extended for a period of one month from this day. Writ Petition is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**