- (1.) C.M.S.A.Nos.30 to 34 of 2006 are focussed as against the common judgment and decrees dated 28.10.2005 passed in A.S.Nos.32, 33, 34, 36 and 38 of 2005 by the learned Principal District Judge, Thanjavur District, in confirming the order dated 23.03.2005 passed in E.A.Nos.13, 14, 15, 17 and 19 of 2004 in E.P.No.50 of 1988 in O.S.No.64 of 1969 by the learned Sub Judge, Pattukottai.
(2.) FOR convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. A re'sume' of facts absolutely necessary and germane for the disposal of these Civil Miscellaneous Second Appeals would run thus: O.S.No.64 of 1969 was filed by as many as three plaintiffs viz, Muthusami Pillai, Marimuthu Pillai and Chinnammal Achi as against the defendants therein viz., K.O.K.Vaithinathan Chettiar and Kootharasu, relating to the suit property for declaration of title and recovery of possession. The suit ultimately decreed after prolonged delay and it became an executable decree. E.P.No.50 of 1988 was filed for recovery of possession and the delivery order was passed. At that juncture, the appellants in all the five second appeals filed obstruction petition under Order 21 Rule 97 of the Code of Civil Procedure, which accordingly, came to be heard by the executing Court and ultimately, those petitions were dismissed. Challenging the same, the appellants herein preferred appeals and the first appellate Court confirmed the finding of the executing Court.
(3.) ANIMADVERTING upon the decision of both the Courts below, these appeals have been filed on the following grounds inter alia thus: Both the Courts below fell into error in interpreting Order 21 Rule 97 of the Code of Civil Procedure as though a third party cannot file an obstruction petition for delivery. They failed to countenance that the petitioners in the obstruction petitions are tenants under K.O.K.Vaithinathan Chettiar, the original judgment debtor and thereafter, under his son Nagarajan, the ninth respondent herein. The petitioners have been occupying the premises for a pretty long time and their right as tenants could have been recognised by both the Courts below. However, they held that the appellants herein were trespassers and dismissed their petitions. The relevant additional grounds as set out in the Grounds of Appeal are extracted hereunder: "(vii) The property originally belonged to Chinnayapillai who died in the year of 1943 leaving his wife Sundaratchi, who became life estate holder. She died intestate on 10.03.1962. She was issueless. Hence, Mr.Ayyakkannupillai, the surviving brother of late Chinnayyapillai got right over the property in his capacity as a reversioner. Ayyakannupillai died intestate leaving his wife Chinnammalatchi, Muthusamypillai (son) and Marimuthupillai (son). The respondents 1 to 3 and 4 to 7 are the surviving legal heirs of the Marimuthupillai and Muthusamypillai respectively. (viii) During her life time Sundaratchi is alleged to have executed a sale deed in favour of K.O.K.Vaithiyanathan Chettiar through whom the appellant is deriving right. The respondents 8 to 12 are the surviving legal heirs of K.O.K.Vaithiyalinga Chettiar. (ix) O.S.No.64 of 1969 was filed against K.O.K.Vaithiyanathan Chettiar by the legal heirs of Ayyakannu Pillai and the same has been decreed. (x) The Subordinate Judge, Pattukottai dismissed the E.A filed by the appellant on the ground that the appellant is a 3rd party and his petition under Section 21 Rule 97 and 101 and Section 151 of CPC is not maintainable and that he is only a stranger. Further held that the appellant has to surrender possession before instituting any legal proceeding to the decree holder and the lower Court refused to entertain any other submission." Accordingly, they prayed for setting aside the orders of both the Courts below and for upholding and sustaining their obstructions. At the time of admitting these second appeals, my learned Predecessor framed the following substantial questions of law: "1. Whether the appellants who are the third parties can maintain a petition under Order 21 Rule 97 without surrendering possession? 2. Whether the lower Courts have relied on the decision reported in AIR 1992 Allahabad 198 which has been over-ruled by the subsequent judgment of the Supreme Court?" ;