NARAYANASWAMI REDDI AND ORS. Vs. AL. VR. ST. VEERAPPA CHETTIAR AND ANR.

JUDGEMENT

(1.) THE petitioners were respondents I to 4 in an application filed by the decree -holder under Order 21, Rule 97, Civil Procedure Code, impieading them as obstructors to his taking delivery. They out forward the position that it was barred by a previous application under the same provision of law E.A. No. 59 of 1946 filed in a previous execution petition E.P.R. No. 158 of 1945 which was dismissed as "not pressed" on 17th March, 1947, and that the decree -holder's remedy was only by a suit within one year under Order 21, Rule 103, Civil Procedure Code. The District Munsiff negatived this contention and held that a fresh application for removal of obstruction, was maintainable.

(2.) THE short relevant facts are these. The obstruction the decree -holder encountered took place on 26th December, 1945. He filed E.A. No. 159 of 1946 against the present petitioners under Order 21, Rule 97 on 26th January, 1946. This execution application after several adjournments was dismissed as "not pressed" on 17th March, 1947, as there was one day's delay in presentation, the limitation period being 30 days from the date of the obstruction under Article 167 of the Limitation Act. The decree -holder filed a fresh execution petition without undue delay on 12th April, 1947, accompanied by this fresh execution application under Order 21, Rule 97. It is quite clear that had it not been for this technical bar of limitation, the decree -holder would have prosecuted his original application for removal of obstruction.

(3.) MY attention has been drawn to two decisions to reinforce the argument for the petitioners. The first is Cannanore Bank, Ltd. v. : AIR1942Mad41 , a Full Bench decision which deals with an order on a claim petition under Rule 58, and an order dismissing such a petition as " not pressed " which was held to be an adverse order against the claimant within the meaning of Order 21, Rule 63 of the Civil Procedure Code. It was held that it was open to the claimant to file a suit within one year from the date of such an order, although he did not choose to press his claim before the executing Court then. But Order 21, Rule 58 relates to a third party to execution proceedings whereas here we are concerned with the rights of a decree -holder to execute his decree. That decision does not help us very much in view of the application under Order 21, Rule 97, Civil Procedure Code, having been filed out of time. Another decision Kaleswar Mills v. : AIR1946Mad76 , is relied on, but there was in that case a clear order of dismissal of the application for removal of the obstruction on the ground that the obstructors were entitled to do so in their own right and were not in possession on behalf of the judgment -debtors.