PADMANABHAN Vs. NARAYANAN
HIGH COURT OF KERALA
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(1.) THESE revision petitions are before this Full Bench on a reference by a Division Bench of which one of us was a member. 1952 KLT 660 was a previous decision of a Division Bench relating to the question involved in these revisions. The reference to the Full Bench was not because any doubt was felt on the correctness of the previous decision but for the purpose of giving a quietus to the whole situation by an authoritative decision of a Full bench. 1952 KLT 660 followed a decision of the Full Bench of the Orissa High court in AIR 1952 Orissa 120 delivered by Jaganatha Das, C. J. , as he then was. Every prior relevant ruling was referred to therein and it was felt to be superogatory in 1952 KLT to cover the ground afresh. After hearing learned counsel at length we are for affirming the view taken in 1952 KLT 660.
(2.) MR. Krishnamoorthi Iyer, learned counsel for the respondent, however, contends that 1952 KLT 660 does not cover the question that arises in these cases. The facts in C. R. P. 290 of 1954 are: There was a decree for redemption of a possessory mortgage. The decree-holder applied for possession and 23. 6. 1954 was fixed as the date for effecting delivery. The previous day, i. e. , on 22. 6. 1954, the respondent before us who was a stranger to the decree, filed the application numbered as C. M. P. 6361 of 1954 under 0. 21, R. 97 and S. 151 of the Code of Civil Procedure stating that he was in possession of the property on his own account, that he was unaffected by the decree and order for delivery and that, therefore, the petition for delivery filed by the decree-holder should be dismissed. The decree-holder objected to the maintainability of this application and prayed that it may be dismissed in limine. That prayer was disallowed and on 25. 6. 1954 an order was passed by the court below posting C. M. P. 6361 of 1954 for investigation. Admittedly the applications in these cases were not meant to be the starting point of any investigation as there could be no investigation at that stage and the stage at which there could be an investigation into the matter is only after the decree-holder purchaser applied for removal of the obstruction under R. 97. The only purpose of the petitions is to give intimation thereof to the decree-holder or purchaser and leave it to him to apply under R. 97 for removal of the resistance or obstruction. What really they want to do is, therefore, to submit a record to the court in order that the order for giving possession may not be implemented except after intimating and hearing them. The decree-holder is the petitioner before us. The facts in C. R. P. 335 of 1954 are: In execution of a mortgage decree two items of immovable property were sold. The purchaser in court auction applied for delivery. 7. 11. 1121 was fixed as the date on which delivery should be effected. Two days before that, i. e. , on 5. 11. 1121 the petitioner before us filed an application CMP 6235 stating that he is a stranger to the decree and proceedings, in execution and is unaffected thereby, that he is in possession of the properties on his own account and that the application for delivery made by the purchaser should be dismissed. The court enquired into the matter and upheld his obstruction regarding one item and dismissed it regarding the other. The revision petition is in respect of the item, the obstruction regarding which was repelled. The question whether the obstruction could be entered at all at that stage was raised by the purchaser in the court below and is repeated before us. The question that is common in both the cases, therefore, is whether a stranger to the decree for possession of immovable property or to the decree and proceedings in execution at which immovable properties are sold can approach the court and record his resistance or obstruction to delivery of property either to the decree-holder or purchaser as the case may be before he has been dispossessed. The provisions of the Code relevant in this regard are contained in Rr. 97 to 100 of 0. 21 of the Code of civil Procedure. It was pointed out in 1952 KLT 660 that the said rules provide for the persons who can approach the court and the time when and the purpose for which they can so approach. Positive provisions having been made in this behalf there is no scope for resorting to the inherent powers of the court under S. 151. The only occasion when a stranger to the decree can approach the court is that contemplated by R. 100 which is after his dispossession. A stranger to a decree or proceedings in execution would be unaffected thereby. He has no grievance to be redressed on account of those proceedings and except for redress of grievances ordinarily a party should not approach the court. Except in the case of an application for a probate or letters of administration a caveat to the effect that nothing should be done in the matter of so and so except on notice to the caveator we are not aware of any other proceeding when a person can come to court without a prayer for relief in respect of a grievance. We ought not omit to mention an instance where a stranger to the proceedings in court can approach for relief. That is where an attachment of property is effected. R. 58 of 0. 21 permits a stranger claiming any interest or title to the property attached coming to court to have his claim adjudged. In the case of the holder of a decree for possession or of a purchaser at a court auction seeking possession of the property decreed or purchased, as already observed the relevant rules do not provide for the entering of a caveat or the intervention of a stranger except after actual dispossession. Possession within the meaning of the rules has been held in 30 Calcutta 710 by Mclean, C. J. , to be khas possession. Symbolical possession is outside the ambit of the rules. It is clear, therefore, that the dispossession contemplated by R. 100 after which alone a stranger can approach the court for relief is actual dispossession. Learned counsel contends that R. 97 of 0. 21 which authorises a decree-holder or purchaser to seek to have any resistance or obstruction removed does not specify the manner of the resistance or obstruction or the place or time when the resistance or obstruction should be made. Resistance or obstruction is in obtaining possession and possession can be obtained under the machinery available under the Code of Civil Procedure, and the rules framed thereunder by issuing a warrant for delivery and entrusting it to an officer of court for execution. Resistance or obstruction can, therefore, be only when that officer goes to the spot to effect actual delivery and not prior to that. Resistant is passive and obstruction imports a positive act against the order for delivery. We, therefore, hold that the only stage at which a stranger can approach the court is after dispossession. That stage has not arrived in either of these cases and applications filed by the respondent in C. R. P. 290 of 1954 and the petitioner in C. R. P. 335 of 1954 should therefore have been dismissed in limine by the Court below. The orders sought to be revised are, therefore, quashed as passed without jurisdiction. The parties will bear their respective costs here and in the court below. Allowed.;
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