GIRIJAMBIKA Vs. GEORGE SELVARAJ
LAWS(KER)-2003-6-57
HIGH COURT OF KERALA
Decided on June 30,2003

GIRIJAMBIKA Appellant
VERSUS
GEORGE SELVARAJ Respondents

JUDGEMENT

- (1.) ALL these four Civil Revision Petitions arise from e. P. 65 of 2001 in O. S. 233 of 1982 on the file of the Principal Munsiff's Court, nedumangad. These four revisions are filed against the orders passed by the executing Court dismissing E. A. Nos. 224, 225, 226 and 227 of 2003 filed by strangers to the decree. C. R. P. 325 of 2003 is filed by the petitioner in e. A. 225 of 2002, C. R. P. 570 of 2003 is filed by the petitioner in E. A. 226 of 2002, C. R. P. 1181 of 2003 is filed by the petitioner in E. A. 227 of 2002 and c. R. P. 1190 of 2003 is filed by the petitioner in E. A. 224 of 2002.
(2.) THE suit was for recovery of property. THE decree holder filed Execution Petition for delivery. During execution proceedings the petitioners in these four Civil Revision Petitions filed four E. As. claiming right, title and possession over the properties. THE executing Court dismissed all the petitions on the sole ground that the petitioners have no right to resist delivery in view of the clear language contained in O. XXI, R. 102 of the code of Civil Procedure. THEy have filed these four revisions challenging those orders. When the matter came up for hearing, Sri. S. James vincent, learned counsel appearing for the decree holder contended that the civil Revision Petitions are not maintainable and the remedy available to the petitioners is to file appeal and not to file Civil Revision Petitions before this Court. The learned counsel relied on the decisions reported in Brahmdeo chaudhary v. Rishikesh Prasad Jaiswal (AIR 1997 SC 856), Shreenath v. Rajesh ( (1998) 4 SCC 543) and Silverline Forum Pvt. Ltd. v. Rajiv Trust (AIR 1998 SC 1754 ). In Brahmdeo Chaudhary's case (supra), the Supreme Court held as follows:? "on the contrary the statutory scheme envisaged by o. XXI, R. 97, CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by O. XXI, Rr. 97 to 103 would remain a complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves". But, in Brahmdeo Chaudhary's case (supra) the Supreme court was not called upon to consider the remedy available to a person against whom an order under O. XXI, R. 102 was passed. The principles laid down in the other two cases do not have any application to the facts of the present case. In Bhanwar Lal v. Satyanarain ( (1995) 1 SCC 6) the supreme Court held as follows:- "under these circumstances the appellate court, though for different reasons was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused by Satyanarain under O. XXI, Rr. 35 (3) and 97 (2) and O. XXI, Rr. 101 and 102 of CPC". Following the decision in Bhanwar Lal's case (supra), the apex Court considered the remedy available to a party against whom an order under O. XXI, R. 102 was passed. In Babulal v. Raj Kumar ( (1996) 3 SCC 154) the apex Court held as follows:? "the controversy is no longer res integra. This court in Bhanwar Lal v. Satyanarain ( (1995) 1 SCC 6) considered the controversy and had held that even an application filed under O. XXI, R. 35 (3) or one filed under S. 47 would be treated as an application under O. XXI, R. 97 and an adjudication is required to be conducted under R. 98. Dispossession of the applicant from the property in execution is not a condition for declining to entertain the application. The reasons are obvious. The specific provisions contained in O. XXI, Rr. 98, 101, 102 enjoin conduct of a regular adjudication, finding recorded thereon would be a decree and bind the parties". It was specifically found that the provisions contained in R. 102 enjoins conduct of a regular adjudication, finding recorded thereon would be a decree. In view of the principle laid down in Babulal's case (supra), the remedy available to the petitioners is to file regular appeal against the decision of the Executing Court and not revision before this Court.
(3.) THE learned counsel appearing for the revision petitioners in all these Civil Revision Petitions has argued that in Babulal's case (supra) the Supreme Court had not considered the remedy available to a person against whom an order under R. 102 of O. XXI was passed by the Executing court. It is argued that the Supreme Court was considering the effect of an order passed under O. XXI, Rr. 35 (3), 97 and 98 and not remedy available to a person aggrieved by an order passed under R. 102. It is argued that under R. 103 of O. XXI, the orders under O. XXI, Rr. 97, 98 and 100 alone are given the effect of a decree and R. 103 does not cover an order passed under R. 102 of O. XXI. It is argued that in Bhanwar Lal's case (supra) the Supreme Court considered rr. 35 (3) and 97 of O. XXI and not the remedy available to a person against whom an order under R. 102 was passed. It is also argued that there is a specific finding to the effect that the Apex Court was not considering the procedure to be followed and the question to be determined under O. XXI, Rr. 98 to 102. My attention was drawn to the following passage:? "the procedure has been provided in Rr. 98 to 103. We are not, at present, concerned with the question relating to the procedure to be followed and question to be determined under O. XXI, Rr. 98 to 102". It was argued that the Supreme Court had no occasion to consider R. 102 in Babulal's case. I find it very difficult to agree with the above submission. In Babulal's case the Supreme Court had specifically found that an order passed under R. 102 is having the force of a decree. The learned counsel has relied on the decision reported in Zinda Ram v. Ramrup Das (AIR 1935 Patna 231), Usha Jain v. Manmohan (AIR 1980 M. P. 146), Kuruvilla v. Kesavan (1980 KLT 364), Santilata v. Nanda kishore (AIR 1981 Calcutta 219), Chandrika v. Gangadharan (1983 KLT 953), C. R. Raman v. Karthikayan (AIR 1984 Kerala 208), M. M. Jamadhar v. Amirbi (AIR 1985 karnataka 91) and Chouthmal v. Sunderlal (AIR 1992 M. P. 192) and argued that a reading of all the above stated decisions of various High Courts shows that an appeal will lie only from the orders passed under Rr. 97 and 99 in view of the provisions contained in R. 103. In none of the decisions cited by the counsel for the revision petitioners the remedy available to a party against whom an order under R. 102 was passed was considered. So, the principles laid down in the above said decisions have no application to the facts of these cases. In view of the decision of the Apex Court in Babulal's case (supra), the remedy available to the revision petitioners against an order passed under R. 102 is to file an appeal and not a Civil Revision Petition before this Court. So, these civil Revision Petitions are not maintainable. In the result, the Civil Revision Petitions are disposed of as not maintainable. Office will return the certified copies of the orders, the revision memo filed and other connected records, if any, to the revision petitioners to pursue the remedy available to them forthwith. C. M. P. Nos. 842 of 2003 and 843 of 2003 in C. R. P. 325 of 2003, C. M. P. Nos. 1438 of 2003 and 1439 of 2003 in C. R. P. 570 of 2003, I. A. 81 of 2003 in C. R. P. 1181 of 2003, I. A. 101 of 2003 in C. R. P. 1190 of 2003 shall stand dismissed. . .;


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