CMSA/18/1999 of SANKARAN AND OTHERS Vs PANDYVEL AND OTHERS on 11 December 2003

:JUDGMENT

The appellants are the third parties to suit O.S.No.769 of 1981 laidby the first respondent herein against the respondents 2 to 8 for delivery ofpossession. It is not in dispute that the said suit laid by the firstrespondent was decreed. When the first respondent sought to execute thedecree in O.S.No.769 of 1981, in E.P.No.307 of 1992, the appellants herein obstructed the same under Order 21 Rule 97 of the Code of Civil Procedure onthe ground that they have put up buildings in the said suit property,incidentally contending that the right of the first respondent over the suitproperty had not been concluded in view of the pendency of S.A.No.334 of 1988on the file of this Court. However, the learned Additional District Munsif,Madurai, taking note of the fact that the appellants herein have no right overthe said property dismissed the claim of the appellants herein by order dated26.10.1998 in E.A.No.707 of 1995, and the same was, on appeal, confirmed bythe learned Principal Subordinate Judge, Madurai, by decree and judgment dated23.3.1999 in C.M.A.No.66 of 1998. Hence, the present civil miscellaneoussecond appeal.

2. This appeal was admitted on the following substantial questions oflaw:

(i) Whether the learned Sub-Judge is wrong in law in proceeding to decide thematter finally when the lower Appellate Court is aware of the fact that theentire proceeding is one under Order 21 Rule 97 of the Code of Civil Procedurewhich mandates that the proceedings has to be tried as a regular suit and in asummary manner?

(ii) Whether the learned Sub-Judge had erred in law in not remitting thematter to the executing Court for affording an opportunity to the parties,particularly to the obstructors/ appellants to substantiate their independentrights claimed by them and thereby proceeding with the matter as a regularsuit?

3. It is now reported that the second appeal, viz., S.A.No.334 of 19

88 relied upon by the appellants was also dismissed by this Court by judgmentdated 10.7.2001. Therefore, the right claimed by the first respondent underthe decree and judgment in O.S.No.769 of 1981 has become final. Under suchcircumstances, particularly when the appellants failed to establish theirrights with regard to the properties while obstructing the execution of thedecree and judgment in O.S.No.76 9 of 1981, the question of holding afull-fledged trial in the execution proceedings does not arise.

4. It is settled law that adjudication mentioned under Order 21 Rule97(2) of the Code of Civil Procedure need not necessarily involve a detailedenquiry or collection of evidence. On the other hand, in an application underOrdersasi P.D.DINAKARAN,J.

21 Rule 97 of the Code of Civil Procedure, the enquiry must be summary and theproceedings must be disposed of expeditiously bearing in mind its scope andthe limited question to be decided.

5. Resultantly, since as the appellants/obstructors have not provedtheir right with respect to the suit property and the right claimed by thefirst respondent herein based on the decree in O.S.No.769 of 1 981 has reacheda finality by virtue of judgment dated 10.7.2001 in S.A.No.334 of 1988,finding no reason to interfere with the judgments of the Courts below, this

appeal is dismissed answering the substantial questions of law negatively. Nocosts. Consequently, C.M.P. Nos.7213 and 18461 of 1999 are also dismissed.

Index: Yes

Internet:Yes

sasi

To:

1. The Additional District Munsif

Madurai.

2. The Principal Subordinate JudgeMadurai.