Whether obstructionist can validly challenge executability of decree?

 Regarding the burden of proof relating to

obstructions, divergent views have been expressed in

similar matters. One view is that the burden is entirely on

the obstructionist for a determination of his right, title or

interest to be adjudicated. Another view is that, the decree-

holder, even though he is clothed with a decree which is not

inter parties, cannot be absolved from his burden to prove

his right or title over the property. When the obstructionists

are capable of showing that they have some rights, title or

interest over the immovable properties, which are to be

adjudicated within the meaning of Order XXI Rule 101 CPC,

it cannot be said that the decree-holders, who are clothed

with a decree which is not inter parties, have no burden in

the matter. An adjudication under the complete code

contained in Order XXI Rule 97 and the related provisions is

admittedly in the form of a suit and the determination

through such an adjudication has the effect of a decree

within the meaning of Order XXI Rule 103 of the Code. In

such case, this Court is of the view that an obstructionist

has even the right to challenge the title of the decree-holder

also. Further, such an obstructionist has the right even to

challenge the executability or otherwise of the decree. If by

any means, the decree has become inexecutable, it cannot

be said that an obstructionist cannot raise such a question.

He can validly challenge the executability of the decree.

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

                      THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

           THURSDAY, THE 14TH DAY OF AUGUST 2014.

                                           Ex.FA.No. 6 of 2009 ( )

                                               ------------------------

        KOYAKUTTY THANGAL,Vs KAVUNNI RAJA.

       

                 Dated this the 14th day of August, 2014

                            

             (1) Whether the judgment dated 25.03.2008

     of this Court in W.P.(C)32951/2006 is per incurium

     against Order XXI Rules 97, 98, 101 and 105 of the

     Code of Civil Procedure 1908?

             (2) Whether the said judgment is binding on

     these appellants?

            (3) Whether the procedure established by law

     through Order XXI Rules 97, 98, 101 and 105 of the

     Code of Civil Procedure 1908 has become a fait

     accompli before the court below, on account of the

     said judgment?

            (4) Whether the decrees in O.S.No.16/1976,

     O.S.17/1976, and O.S.18/1976 of the court below

     are binding on the rights being claimed by these

     appellants over the properties in their possession,

     in respect of which obstructions were caused by

     them in effecting delivery in execution of those

     decrees?

            (5)   Has      the court    below bypassed or

     circumvented the procedure established by law

     through Order XXI Rules 97, 98, 101 and 105 of the

     Code of Civil Procedure 1908 by adopting the

     procedure by which the court below has passed the

     impugned common order?

            (6)    Has the court below adjudicated the

     claims for the removal of obstructions caused by

     these appellants, as per law?

These are the main questions arise for consideration in

these appeals!

       2.    These appeals have been preferred by the

appellants challenging common order dated 09.01.2009

passed by the Subordinate Judge's Court, Manjeri in E.A.

Nos.498/2008, 525/2008 to 535/2008 and 537/2008 to

551/2008         in      E.P.115/1998    in   O.S.No.16/1976,

E.A.Nos.499/2008, 552/2008, to 574/2008 and 576/2008,

577/2008 to 590/2008 in E.P.30/1999 in O.S.17/1976, and

E.A.Nos.500/2008, 737/2008, 591/2008 to 614/2008 and

E.A.616/2008 to 629/2008 in E.P.31/1999 in O.S.18/1976 by

treating it as an appealable order passed by the court below

within the meaning of Order XXI Rule 103 of the Code of

Civil Procedure 1908(hereinafter referred to as 'the Code'

for short).

       3.    In 1960, the decree-holders filed a simple suit for

injunction as O.S.No.292/1960 before the Munsiff's Court,

Manjeri seeking a decree of perpetual injunction against

trespass, as against the judgment-debtors as defendants.

In 1961, the very same plaintiffs filed another similar suit as

O.S.342/1961 before the said court seeking the very same

relief; but with regard to some other properties situated in

the    neighbourhood         of the    properties covered   by

O.S.292/1960.        Again, in the year 1962, alleging further

attempts of trespass, the very same plaintiffs filed

O.S.177/1962 seeking the very same relief; of course as

stated above, with regard to another piece of land situated

in the neighbourhood of the properties covered by both the

aforesaid earlier suits. Subsequently, in the year 1976, the

plaintiffs amended all the said suits by incorporating the

relief of recovery of possession and consequential reliefs, by

complaining of acts of trespass by the defendants. On

account of the amendment, the valuation of the suits

exceeded the pecuniary jurisdiction of the Munsiff's Court

and thereby the Munsiff's Court, Manjeri returned the plaints

to be presented before the Subordinate Judge's Court,

Manjeri.

       4. The plaints were presented before the court below,

where O.S.292/1960 was renumbered as O.S.16/1976,

O.S.177/1962        was renumbered      as O.S.17/1976     and

O.S.342/1961 was renumbered as O.S.18/1976. Ultimately,

all the suits were decreed in favour of the plaintiffs with

regard to the relief of recovery of possession. At the same

time, the defendants were granted the relief for the value of

improvements made by them in the properties. Appeals

were preferred by the defendants as well as the plaintiffs.

       5.    The appeals preferred by the defendants as

A.S.Nos.58/83, 76/83 and 77/83 were dismissed. At the

same time, the appeals preferred by the plaintiffs as

A.S.Nos.66/83, 67/83 and 68/83 were allowed by setting

aside the relief of the value of improvements granted to the

defendants. The appeals filed by the plaintiffs relating to the

claim for past profits were disallowed. In short, the learned

Single Judge of this Court has, in fact, denied the relief

granted to the defendants by the trial court for value of

improvements and confirmed the judgment and decree on

all other aspects. The defeated defendants did not stop

there; but they preferred AFA Nos.54/97, 58/97 and 59/97,

which were also ultimately dismissed. Therefore, the

judgments and decrees passed by the court below stand

modified through the judgment passed by the learned Single

Judge and the same was further confirmed by a Division

Bench of this Court in the AFAs.

       6.    The     decree-holders    filed EP 115/1998   in

O.S.16/1976, EP 30/1999 in O.S.17/76, and EP 31/1999 in

OS 18/1976. It seems that on 19.10.2006 the Amins

deputed by the court below went to the properties pointed

out by the decree-holders as decree schedule properties,

and attempted to effect delivery. In the case of EP 115/1998,

14 persons obstructed the delivery. The Amin took down the

names and addresses of most of those 14 persons and

thereafter, he returned the warrant with a report disclosing

the names of all those obstructors and addresses of most of

such obstructors, before the court below. Through the said

report, the Amin requested for the assistance of either the

Village Officer or the Taluk Surveyor for properly identifying

the property to be delivered.

       7.    Similarly, in EP 30/1999, 24 persons obstructed

the delivery. The Amin took down the names of those 24

persons and the addresses of most of them and thereafter,

he returned the warrant with a report disclosing the names

of those 24 persons, and the addresses of most of such

obstructors, before the court below. In EP 31/1999, 39

persons obstructed the delivery. The Amin took down the

names of all the 39 persons, and addresses of most of them

and thereafter, he returned the warrant with a report

disclosing the said names and addresses, before the court

below.

       8.    It seems that on 18.11.2006 the decree-holders

had filed three Execution Applications in the said three EPs.,

as E.A.508/2006 in EP 115/1998, E.A.509/2006 in EP

30/1999 and E.A.510/2006 in EP 31/1999. In E.A. 508/2006

in EP 115/1998, along with the judgment-debtors, the

obstructors were also arrayed as respondents 18 to 31. In

E.A. 509/2006 in EP 30/1999, along with the judgment-

debtors, the obstructors were arrayed as respondents 18 to

42. In E.A. 510/2006 in EP 31/1999, along with the

judgment-debtors,         the obstructors were arrayed     as

respondents 18 to 52. It seems that the said three EAs.

remained as defective without being numbered, and the

same were returned for curing the defects.

       9.    In the mean time, without disclosing anything

regarding the E.As. 508/2006, 509/2006 and 510/2006, the

decree-holders preferred E.A. 441/2006 in EP 115/1998 in

O.S.16/1976, apparently one under Section 151 of the

Code, seeking police protection for effecting delivery of the

decree schedule properties. At the same time, in the said

E.A. 441/2006, the obstructors were not made parties. The

judgment-debtors also preferred E.A. 446/2006 in EP

115/1998 for getting an Advocate Commissioner deputed in

order to monitor the mode of delivery in execution by

expressing the apprehension that there would be excess

delivery in case of no such monitoring. In E.A. 446/2006

also, the obstructors were not made parties. The court

below heard both the E.As. 441/2006 and 446/2006

together on 23.11.06 and disposed of the same through a

common order on 25.11.06 whereby E.A. 441/2006 was

dismissed after making a detailed discussion.           E.A.

446/2006 was dismissed as unnecessary, in view of the

dismissal of E.A. 441/2006.

       10. Then the decree-holders cured the defects on

E.As. 508, 509 and 510 of 2006 on 27.11.2006, re-

presented it before the court below and got it numbered as

the said E.As. It seems that the decree-holders were not

vigilant to proceed with E.As. 508, 509 and 510 of 2006 filed

under Order XXI Rule 97 of the Code. At the same time, the

20th decree-holder alone had chosen to approach this Court

under Article 227 of the Constitution of India, through W.P.

(C) No.32981/2006 by challenging order dated 25.11.2006

passed by the court below on EA 441/2006.

       11.   It further seems that the 20th decree-holder, who

approached this Court as petitioner in W.P.(C)32951/2006

by challenging order dated 25.11.2006 passed by the court

below on E.A. 441/2006, has not chosen to make any of the

obstructors as parties in the said W.P.(C). At the same time,

the judgment-debtors were made parties in it.         W.P.(C)

32951/2006 was disposed of by this Court on 25.03.2008. A

perusal of the said judgment would reveal that the pendency

of E.As. 508, 509 and 510 of 2006 before the court below

was not disclosed before this Court. Certain directions

deviating from the procedure contemplated under Order XXI

Rules 97, 98, 101, 102, 103, and 105 of the Code are seen

given in the judgment in W.P.(C)32951/2006. Through the

said judgment, this Court after setting aside order dated

25.11.2006 passed by the court below on E.A. 441/2006,

remitted the matter back to the court below, with some

directions as noted above.

       12. On getting the matter remanded in a limited

sense based on the directions given by this Court in the said

judgment, it seems that the court below has acted in

conformity with the directions given by this Court and

passed the impugned order. Through impugned order, the

court below has dismissed all the EAs. covered by the

impugned order, and ordered delivery of the decree

schedule property, as if it is an order under Order XXI Rule

35 CPC. The court below directed the Superintendent of

Police, Malappuram to afford assistance including WPCs to

the Amin for effecting delivery.

       13. The assistance of Advocate Sri.Chandran Pillai

(presently a Senior Counsel of this Court), who was the

Commissioner appointed by the Division Bench of this Court

in the matter earlier, was also ordered. Challenging the

impugned order, the obstructors have come up in appeal.

       14. Heard           the  learned    Senior   Counsel

Sri.R.D.Shenoy,           the  learned     Senior   Counsel

Sri.S.V. Balakrishna Iyer, the learned counsel Sri.Rajesh R

Komath, Sri.U.K. Devidas, Sri.Abdul Hakim, Sri.Suresh

Menon etc. for the appellants, and the learned Senior

Counsel Sri.Krishnanunni for the decree-holders.

       15. The learned Senior Counsel Sri.R.D.Shenoy has

made a scathing attack on the judgment passed by this

Court in W.P.(C) 32951/06, which ultimately paved way for

the passing of the impugned order by the court below.

According to the learned Senior Counsel, the said judgment

is per incurium against the statute, specifically, the

provisions under Order XXI Rules 97, 98, 101, 102, 103,

and 105 of the Code and therefore, it is not worthy for any

purpose at all. It has been argued that the same could only

be treated as a non est in the eye of law which could not

have been relied on by the court below. It is further argued

that the decree-holders have resorted to a short cut method

by overlooking all the provisions of law and procedure by

bypassing        and      circumventing   the  due   procedure

contemplated under Order XXI Rules 97, 98, 101, 102, 103,

and 105 of the Code and therefore, the impugned order

apparently one based on the                judgment in W.P.(C)

32951/2006 of this Court is also a non est. It has been

further argued that as the judgment in W.P.(C) 32951/06 is a

non est, all further proceedings based on it have also

become ipso facto non est. It is argued that the judgment in

W.P.(C) 32951/2006 has resulted in a special procedure

adopted by the court below which is unknown to law, which

has ultimately resulted in substantial miscarriage of justice.

       16. The learned Senior Counsel Sri.S.V.Balakrishna

Iyer has argued that this Court in W.P.(C) 32951/2006 ought

not to have passed such a judgment by giving directions

which are alien to the provisions contained in Order XXI

Rules 97, 98, 101, 102, 103, and 105 of the Code. It is also

argued that if at all the application filed by the decree-

holders as E.A. 441/2006 is one filed under Section 151 of

the Code, when the names and addresses of the

obstructors were available, the court below ought to have

treated the said application as one under Order XXI Rule 97

and proceeded to adjudicate it within the meaning of Order

XXI Rule 97(2) of the Code.            It is further argued that a

decree-holder, who was once obstructed from getting

delivery, could not have resorted to any procedure other

than the procedure contemplated under Order XXI Rules 97,

98, 101, 102, 103, and 105 of the Code.

       17. The learned counsel Sri.Rajesh R. Komath, Abdul

Hakim etc. have argued that the decrees, as such, are not

executable as the property covered by the said decrees are

not identifiable. According to them, by obtaining the decrees

with regard to the properties which are allegedly situated in

Kalikavu Village, the attempt of the decree-holders is to get

the decrees executed and to snatch away the delivery of the

properties belong to the appellants, which are situated in

Kerala Estate Village, which was bifurcated from the

erstwhile Karuvarakundu Village. They have argued that

Ext.C1(a) plan appended with the decree cannot be acted

upon, as once the same was thrown away by a Division

Bench of this Court by appointing another Commissioner

who prepared another report and plan. They have further

argued that the decree schedule property could only be the

property covered by Ext.A1 based on which the decree-

holders traced their title. The argument is that unless and

until the property covered by Ext.A1 is identified, delivery

cannot be ordered.

       18. Per       contra,  the     learned Senior Counsel

Sri.Krishnanunni appearing for the decree-holders has

argued that in all cases wherein there is an obstruction, all

the lengthy procedures contemplated under Order XXI

Rules 97, 98, 101, 102, 103, and 105 of the Code are not

required to be adopted, and that such procedure is required

only in cases wherein such questions arise for consideration

between the parties to the proceedings which are relevant to

the adjudication of such application. It has been argued that

the obstructors have deliberately made it to appear that the

properties, which they alleged to have reduced into their

possession are situated in Kerala Estate Village, whereas

the said properties are also part of the decree schedule

properties situated in Kalikavu Village. It is further argued

that the decree-holders are not attempting to get the decree

executed with regard to any piece of land situated outside

Kalikavu Village and therefore, the obstructors who claim

that they are in possession of properties coming within the

Kerala Estate Village, cannot obstruct the execution of the

decrees. The learned Senior Counsel for the decree-holders

has fully supported the findings entered by this Court in the

judgment in W.P.(C) 32951/06 as well as by the court below

in the impugned order, by stating that there is nothing wrong

in adopting a special procedure in order to achieve

substantial justice. It is also argued that the direction passed

by this Court to have the publication of notice, is not in any

way alien to the established procedure, when some of the

appellants who did not obstruct the delivery on 19.10.2006

also could get an opportunity to forward their claims. It has

been further argued that in cases wherein prima facie

nothing is there to be adjudicated, and when there is no

prima facie satisfaction that such questions relevant to be

adjudicated in the proceedings arise for consideration, any

adjudication is not warranted. It has also been argued that

any interference with the impugned order will result in a

further delay of at least 20 years more in these cases

wherein the decree-holders, who have been anxiously

waiting for the last several decades from 1960, for enjoying

the fruits of the decrees.

       19. The first question to be considered is whether at

any stretch of imagination, the procedure contemplated

under the provisions of Order XXI Rules 97, 98, 101, 102,

103, and 105 of the Code can be given a go by without any

adjudication, and merely on a prima facie satisfaction that

such questions do not arise or such questions are not

relevant for any adjudication. The question to be considered

along with it is whether the procedure contemplated under

Order XXI Rule 35 denotes a different procedure than what

is contemplated under Order XXI Rules 97, 98, 101, 102,

103, and 105 of the Code.

       20. Order XXI Rule 97 reads:

            "97.     Resistance      or   obstruction to

            possession of immovable property-

            (1) Where the holder of a decree for the

            possession of immovable property or the

            purchaser of any such property sold in

            execution of a decree is resisted or

            obstructed by any person in obtaining

            possession of the property, he may make

            an application to the court complaining of

            such resistance or obstruction.

            (2) Where any application is made under

            sub-rule (1), the court shall proceed to

            adjudicate       upon    the  application in

            accordance with the provisions herein

            contained."

       21. Order XXI Rule 97(2) says that where any

application is made under Rule 1, the Court shall proceed to

adjudicate upon it in accordance with the provisions therein

contained. The next provision to be looked into is Order XXI

Rule 101 which reads:

             "101. Question to be determined-

             All questions (including questions relating

             to right, title or interest in the property)

             arising      between      the   parties to  a

             proceeding on an application under rule

             97 or rule 99 or their representatives, and

             relevant      to  the    adjudication  of the

             application, shall be determined by the

             Court dealing with the application, and not

             by a separate suit and for this purpose,

             the Court shall, notwithstanding anything

             to the contrary contained in any other law

             for the time being in force, be deemed to

             have       jurisdiction      to decide   such

             questions."

       22. The next provision of law to be considered is the

procedure contemplated under Order XXI Rule 105 which

reads:

           "105. Hearing of application-

           (1) The Court, before which an application

           under any of the foregoing rules of this

           Order is pending, may fix a day for the

           hearing of the application.

           (2) Where on the day fixed or on any other

           day to which the hearing may be adjourned

           the applicant does not appear when the

           case is called on for hearing, the Court may

           make an order that the application be

           dismissed.

           (3) Where the applicant appears and the

           opposite party to whom the notice has been

           issued by the Court does not appear, the

           Court may hear the application ex parte and

           pass such order as it thinks fit.

           Explanation.--An application referred to in

           sub-rule (1) includes a claim or objection

           made under rule 58."

       23. Order XXI Rule 98 deals with the determination of

the questions referred to in Rule 101, after an adjudication.

Order XXI Rule 98 reads:

             "98. Orders after adjudication

             (1)    Upon     the  determination   of the

             questions referred to in rule 101, the court

             shall,      in   accordance     with   such

             determination and subject to the provisions

             of sub-rule (2),-

             (a) make an order allowing the application

             and directing that the applicant be put into

             the    possession      of   the property or

             dismissing the application; or

             (b) pass such other order as, in the

             circumstances of the case, it may deem fit,

             (2) Where, upon such determination, the

             Court is satisfied that the resistance or

             obstruction was occasioned without any

             just cause by the judgment-debtor or by

             some other person at his instigation or on

             his behalf, or by any transferee, where

             such    transfer   was      made during the

             pendency        of the     suit or  execution

             proceeding, it shall direct that the applicant

             be put into possession of the property, and

             where the applicant is still resisted or

             obstructed in obtaining possession, the

             Court may also, at the instance of the

             applicant, order the judgment-debtor, or

             any person acting at his instigation or on

             his behalf, to be detained in the civil prison

             for a term which may extend to thirty days."

       24. Order XXI Rule 102 reads:

            "102. Rules not applicable to transferee

                    pendente lite-

             Nothing in rules 98 and 100 shall apply to

             resistance or obstruction in execution of a

             decree for the possession of immovable

             property by a person to whom the

             judgment debtor        has transferred the

             property after the institution of the suit in

             which the decree was passed or to the

             dispossession of any such person .

                     Explanation.-In this rule, "transfer"

             includes a transfer by operation of law."

       25. The learned Senior Counsel Sri.Krishnanuuni

while supporting the impugned order as well as the

judgment passed by this Court in W.P.(C) 32951/06 has

canvassed an argument that when there is resistance by a

person bound by the decree, he could, in fact, be thrown out

with the aid of Order XXI Rule 35 of the Code itself. Order

XXI Rule 35 is extracted below:

             "35. Decree for immovable property -

             (1) Where a decree is for the delivery of

             any     immovable     property, possession

             thereof shall be delivered to the party to

             whom it has been adjudged, or to such

             person as he may appoint to receive

             delivery on his behalf, and, if necessary,

             by removing any person bound by the

             decree who refuses to vacate the property.

             (2) Where a decree is for the joint

             possession of immovable property, such

             possession shall be delivered by affixing a

             copy of the warrant in some conspicuous

             place on the property and proclaiming by

             beat of drum, or other customary mode, at

             some convenient place, the substance of

             the decree.

             (3) Where possession of any building or

             enclosure is to be delivered and the

             person in possession, being bound by the

             decree, does not afford free access, the

             Court, through its officers, may, after

             giving reasonable warning and facility to

             any woman not appearing in public

             according to the customs of the country to

             withdraw, remove or open any lock or bolt

             or break open any door or do any other

             act necessary for putting the decree-

             holder in possession."

       26. The learned Senior Counsel Sri.R.D.Shenoy and

Sri.S.V.Balakrishna Iyer have argued that even in cases of

such an obstruction or resistance by a person bound by the

decree, it cannot be said that he could not get his rights, if

any, adjudicated within the meaning of Order XXI Rule 97

(1).   On construing the provisions reproduced above, it

seems that Order XXI Rule 35(1) reveals that the said

provisions can have an application only in cases wherein the

resistance is from a person bound by the decree. The

question to be looked into is, even in such cases, can the

execution court simply order removal of the said obstruction

or resistance with police aid under Order XXI Rule 35(1)

without having recourse to the provisions contained in Order

XXI Rules 97, 98, 101, 102, 103, and 105 of the Code, even

when such a person is forwarding some other independent

rights of his own or just cause to resist or obstruct the

delivery? Order XXI Rule 97(1) deals with resistance or

obstruction by "any person". At any stretch of imagination, it

cannot be said that the said terms "any person" used under

Order XXI Rule 97(1) does not include even a person who is

bound by the decree. Even when a person who is bound by

the decree is obstructing the execution of the decree, and

makes an application within the meaning of Order XXI Rule

97(1), the same has to be adjudicated within the meaning of

Order XXI Rule 97(2) of the Code. Resistance or obstruction

by a person, who is bound by the decree is not at all an

exception to either Order XXI Rule 97(1) or 97(2).

       27. The next question to be decided is as to what are

the rights to be adjudicated within the meaning of Order XXI

Rule 101 of the Code. It shows that "all questions(including

questions relating to right, title or interest in the property)

arising between the parties to a proceeding on an

application under rule 97...........and relevant to the

adjudication of the application, shall be determined by the

Court dealing with the application, and not by a separate

suit........." what is discernible is that not only all questions

arising between the parties to a proceeding on an

application under Order XXI Rule 97, but also all questions

including questions relating to right, title or interest in the

property, are also questions relevant for adjudication within

the meaning of Order XXI Rule 101 of the Code. Therefore,

the scope of questions that can be decided under Order XXI

Rule 101 of the Code is very wide.

       28. Then what is the meaning of 'right' used under

Order XXI Rule 101? 'Rights' are always concerned with

interest.    'Right' can be defined as interest protected by

rules of right, either moral or legal rules. At the same time,

right and interest are not identical. Interests are things to a

living being's advantage. We can say that a man has

interest, in his property, in his reputation, in his freedom etc.

When he has the right to protect such interests, the said

interest become the subject of those rights. When he has an

interest in property, it is his advantage and he has a right to

protect it, which implies that others ought not to have taken

it away from him. There are many interests exist defacto

and not de jure, the violation of which is not wrong, the

respect for which is not a duty, and such interests cannot

receive any legal recognition or protection. If it is de jure,

the position is the converse. Every legal right has a title,

that is to say, certain facts or events by reason of which the

right has become vested in its owner. As far as the terms

"right, title or interest in the property" as contained under

Order XXI Rule 101 are concerned, it seems that the title or

interest in the property are subjects of the right of a person.

       29. When an obstructor comes up with a claim for

getting any of his rights in the property adjudicated, his

claim cannot be thrown out without an adjudication by

merely stating that such a right is not relevant to be

adjudicated. The learned Senior Counsel Sri.Krishnanunni

relies on the decision in Silverline Forum Pvt. Ltd. v. Rajiv

Trust and another[AIR 1998 SC 1754] to canvass his

argument that in all cases wherein resistance or obstruction

arises, there need not be an adjudication. On going through

the facts of the said case, it cannot be said that the ratio

from that decision can apply to the facts and circumstances

of these cases. In that case, a decree in question was

passed against a tenant. There is a provision in the

concerned enactment relating to the tenancy in that

particular case that the tenant could sublet; of course, by

informing the matter to the landlord. In that particular case,

the tenant committed subletting even without the knowledge

and consent of the landlord. Thereafter, the sub-tenant,

committed subletting again to another sub-tenant, who was

the first appellant therein. When delivery was attempted,

the said second sub-tenant forwarded an obstruction. He

had specifically conceded in his application that he was the

2nd subtenant inducted without the knowledge and consent

of the original landlord. It was in that scenario the Apex

Court held that in such a case a rowing enquiry was not

contemplated because of the specific admission by the said

appellant. In paragraphs 12 and 13 of the decision noted

supra, it was held:

              "It is clear that executing Court can

              decide whether the resistor or obstructor

              is a person bound by the decree and he

              refuses to vacate the property. That

              question also squarely falls within the

              adjudicatory process contemplated in

              Order 21, Rule 97(2) of the Code. The

              adjudication mentioned therein need not

              necessarily involve a detailed enquiry or

              collection of evidence. Court can make

              the adjudication on admitted facts or even

              on the averments made by the resistor.

              Of course the Court can direct the parties

              to     adduce    evidence     for     such

              determination if the Court deems it

              necessary."

       30. In Silverline Forum Pvt. Ltd. (Supra), the Apex

Court held that an adjudication can be made on the basis of

admitted facts or even on the averments made by the

resistor. It seems that it cannot be treated as a new

phenomenon or new principle enunciated by the Apex Court.

Even under Order XXI Rule 6 of the Code, such a principle

can be found. Even in a suit, the court is empowered to

pass a judgment and decree based on the apparent

admission, if any, made by the defendant, without any

further adjudication. In an adjudication within the meaning of

Order XX1 Rule 97(2) also, the question involved in it can

be determined and an order can be passed on the basis of

the admitted facts. Such an order passed on the basis of the

admitted facts, will not take it out of the purview of an

adjudication. On a close scrutiny of the decision noted

supra, this Court is of the view that the ratio in that decision

cannot be pressed into service as far as the facts and

circumstances of these cases are concerned.

       31. The learned Senior Counsel Sri.R.D.Shenoy has

invited the attention of this Court to almost all the portions

of the judgment in W.P.(C) 32951/2006. It seems that any of

the parties to the said W.P.(C)32951/2006 has not brought

the fact regarding the pendency of E.As. 508, 509 and 510

of 2006 in the E.Ps. before the court below, to the notice of

this Court. On a perusal of the judgment, this Court is of the

view that, had it been made known to this Court while

dealing with the said W.P.(C), definitely this Court would

have taken its hands to away by paving way for an

adjudication of the matters contained in E.As. 508, 509 and

510 of 2006.        May be because of that, the 20th decree-

holder, who alone rushed to this Court even without

impleading any of the obstructors, has not cared to disclose

the pendency of E.As. 508, 509 and 510 of 2006, before this

Court. It cannot be said that the said petitioner was unaware

of the pendecny of the said E.As., as he was also a party to

it. The learned Senior Counsel for the appellants have

pointed out that the procedure prescribed by this Court in

the said judgment relating to the adjudication of the

questions relating to the obstruction, are beyond the scope

of Order XXI Rules 97, 98, 101, 102, 103, and 105 of the

Code. Amins appeared at the properties in the possession

of these appellants for effecting the delivery of the decree

scheduled properties, were obstructed. The names of all the

obstructors and the addresses of most of them were

furnished to the court below by those Amins through their

reports.     Thereafter,     without    having recourse to the

provisions of Order XXI Rule 97(2) of the Code, the decree-

holders had chosen to file E.A.441/2006 for the removal of

obstructions through police aid, and for the issuance of

fresh warrants for delivery.

       32. Such a procedure is not, in fact, contemplated

under Order XXI Rule 97 of the Code. Normally, it cannot

be said that these obstructors were persons bound by the

decrees. Even, in order to decide whether these persons

are persons bound by the decrees also, an adjudication as

contemplated under Order XXI Rule 97(2) is required.

Without such an adjudication, one cannot safely decide

whether such obstructors who are not parties to the decrees

or even the E.Ps. are persons bound by the decree, within

the meaning of Order XXI Rule 35(1) of the Code. Even if

they are persons bound by the decree, in such cases also if

they can show just cause, they can resist or obstruct the

execution, withing the meaning of Order XXI Rule 98(2), and

Ex.F.A.No.6/2009 & con. cases

                                -: 34 :-

to get their rights adjudicated.        Even if a person who is

bound by the decree is obstructing the delivery and in an

adjudication under Order XXI Rule 98(2) if he proves that

his cause is a just cause and he is entitled to protect his

possession, his rights have to be adjudicated for the

determination of the rights claimed by him. Under the

provisions of Order XXI Rules 97, 98, 101, 102, 103, and

105 of the Code, the words carefully used by the legislature

are 'determination', and 'determined'. Determination can

only be through an adjudication and not otherwise. A

determination       is    the result    of an   adjudication as

contemplated by Order XXI Rule 101.

       33. It seems from the judgment rendered by this

Court in W.P.(C) 32951/2006 that, this Court had attempted

to have an adjudication of the rights, of the obstructors even

when they were not parties before this Court. In the

judgment it was held:

             "But the court below should have seen that

Ex.F.A.No.6/2009 & con. cases

                                -: 35 :-

             apart from claiming that they are having

             documents in their possession to show

             that the decree schedule properties are

             possessed by them they did not even

             show those documents to the Amin. It is

             also to be noticed in this context that

             Exts.P4 and P5 reports submitted by the

             Advocate Commissioner appointed by this

             Court in AFA will reveal that there is no

             scope for any confusion regarding the

             identity of the properties and particularly

             the village in which the decree schedule

             properties are situated.     Going by those

             two reports the properties were in the

             possession      of the     judgment  debtors

             themselves at that time i.e., in 2003."

This Court has gone further in finding that if at all anybody

else has come into peaceful possession of the properties

thereafter, their status in relation to the properties can only

be that of a transferee pendente lite, who will also be bound

by the decree. It has to be noted that the said findings were

entered after noting down that Exts.P1, P2 and P3 reports of

Ex.F.A.No.6/2009 & con. cases

                                -: 36 :-

the Amin had clearly revealed that certain named persons

had raised obstructions raising disputes regarding the

identity of the properties.

       34. It seems that most of the obstructors are holding

properties under the belief that those properties are not

properties covered by the decrees and that they have

independent rights over the properties being held by them. It

may or may not be correct. But when there were such

obstructions from their part, they have got an absolute right

to get their rights adjudicated. They cannot be styled as

persons bound by the decree without a proper adjudication

to find out whether they are persons bound by the decree.

Only after an adjudication, it can be concluded whether they

are persons bound by the decrees or not. It seems that the

judgment rendered by this Court in W.P.(C) 32951/06 has

almost finalised the view that the judgment debtors were in

possession of the properties till 2003 and all the obstructors

were inducted by the judgment-debtors after 2003, without

Ex.F.A.No.6/2009 & con. cases

                                -: 37 :-

an adjudication as contemplated by law. Such a finding

could not have been endorsed. The further finding that such

persons are transferees pendente lite also is made without

any adjudication. At the same time, it seems that after

making such observations in the form of findings on facts, it

was held therein that a full-fledged adjudication is warranted

in the circumstances of this case, "only if there was some

convincing material to show that the obstructors have

claims independent of the judgment debtors." No doubt, as

argued by both the learned Senior Counsel for the

appellants, consequent to the said judgment of this Court,

the matter sent for consideration before the court below has

become a fait accompli before the court below.

       35. It seems that the court below on getting the

matter remanded with the said observations and findings,

have endorsed the views expressed in the said judgment

through the impugned order. It seems that the court below

did not labour much to enter the findings and it seems that

Ex.F.A.No.6/2009 & con. cases

                                  -: 38 :-

the court below has simply endorsed almost all the findings

entered in the judgment in the W.P.(C) for non-suiting these

appellants.

       36. On going through Order XXI Rule 102 it is evident

that nothing in Rules 98 and 100 shall apply to resistance or

obstruction in execution of a decree for the possession of

the immovable property by a person who is a transferee

pendente lite from the judgment-debtor. As per the

Explanation to it, the transfer includes a transfer by

operation of law. Even if a judgment-debtor dies during the

pendency       of    the     execution    proceedings, his legal

representatives have to come on record, and by way of

succession, if they are getting the rights of the judgment-

debtors over such immovable property, it can also be styled

as a transfer by operation of law. Therefore, the said class

of transferees i.e., transferees pendente lite from the

judgment-debtor, which includes such transferees by

operation of law, is specifically excluded from the purview of

Ex.F.A.No.6/2009 & con. cases

                                -: 39 :-

Rules 98 and 100. When going back to Order XXI Rule 98

(2), it is evident that the said provision contains, the terms

"or by any transferee, where such transfer was made during

the pendency of the suit or execution proceedings."

       37. The transferee noted under Order XXI Rule 98(2)

does not take in a transferee pendente lite from the

judgment-debtor or a transferee pendente lite by operation

of law from the judgment-debtor. The learned Senior

Counsel Sri.Krishnanunni does not agree with the said

proposition. According to him, the said provision does not

exclude transferees pendente lite from the judgment-debtor

as contemplated under Order XXI Rule 102 from the

purview of Order XXI Rule 98(2) of the Code. According to

him, the transferee contemplated under Order XXI Rule 98

(2) are transferees pendente lite from the judgment-debtor

alone.      It is hard to agree with the said proposition

forwarded by the learned Senior Counsel. It clearly

discernible from Order XXI Rule 98(2) read with Order XXI

Ex.F.A.No.6/2009 & con. cases

                                -: 40 :-

Rule 102, a transferee pendente lite from the judgment-

debtor is specifically excluded from the category of

transferee contemplated under Order XXI Rule 98(2) of the

Code.

       38. As rightly pointed out by the learned Senior

Counsel Sri.R.D.Shenoy and S.V.Balakrishna Iyer, it is

evident that the court below was carried away by the

untimely observations and findings of this Court in the

judgment in the W.P.(C) 32951/06. When this Court has

specifically found that all the obstructors were inducted

after 2003 by the judgment-debtors, one cannot find fault

with    the    court     below, when     the court below  is

administratively subordinate to this Court, in endorsing the

findings entered by this Court as such. The learned counsel

Sri. Rajesh R. Komath and Sri.Abdul Hakim have pointed

out that this Court in the judgment in W.P.(C) 32951/06 had

also finalized the questions regarding the identify of the

properties, without any adjudication.

Ex.F.A.No.6/2009 & con. cases

                                -: 41 :-

       39. The appellants have a specific case that under the

guise of the execution of the decrees, the properties being

possessed by the appellants cannot be taken away through

delivery when such a contention is there. Even without any

adjudication, and behind their back, it seems that the finding

has been entered to the effect that there is no scope for any

confusion with regard to the identity of the property. Had

these obstructors been made parties to the W.P.(C), they

could have definitely pointed out that such a finding could

not have been endorsed          without   them being given an

opportunity of being heard in the matter, or without an

opportunity of their claims being adjudicated. Even when

the petitioner in the W.P.(C) was aware of the identify of the

obstructors, he rushed to this Court by seeking police aid by

challenging the order in E.A. 441/2006 without impleading

the persons who were allegedly obstructing the execution of

the decree. This Court, in fact, could not have passed the

judgment when such identifiable obstructors were there,

Ex.F.A.No.6/2009 & con. cases

                                -: 42 :-

without hearing them. It seems that through the judgment,

even the principles of natural justice have been given a go

by.

       40. The learned Senior counsel for the appellants are

relying on the decision in Khetrabasi Biswal Vs. Ajaya

Kumar Baral and others [(2004) 1 SCC 317], wherein it

was held in paragraph 6,

           "The procedural law as well as the substantive

           law both mandates that in the absence of a

           necessary party, the order passed is a nullity

           and does not have a binding effect."

The same is pressed into service for fortifying their

argument that the judgment passed by this Court in W.P.(C)

No.32981/2006 is a non est and the same is not binding on

these appellants as they were not impleaded in the W.P.(C)

and any opportunity of being heard was not extended to

them.

       41. The learned Senior counsel Sri.R.D.Shenoy has

relied on the decision in Anwarbi Vs. Pramod D.A. Joshi

Ex.F.A.No.6/2009 & con. cases

                                  -: 43 :-

and others [2000 (10) SCC 405], which was rendered in an

identical case. In that case, when the delivery of possession

of the property in execution was obstructed by the appellant,

the decree-holder again approached the execution court

with an application under Order XXI Rule 35 of the Code for

the removal of the obstruction/resistance for effecting

delivery. The Apex court held that, in such case the decree-

holder ought to have applied under Order XXI Rules 97 and

101 of the Code. In paragraph 4 of the decision in Anwarbi

(supra), it was held:

           "We,    therefore    make     it clear  that the

           possession      of  the   appellant   cannot  be

           disturbed except in accordance with law; and

           that in view of the obstruction raised by her to

           the execution of the said decree, the rights of

           the obstructionist will have to be decided in

           appropriate proceedings, in accordance with

           law.    Unless and until such proceedings

           terminate in favour of the decree-holder, the

           decree-holder cannot take possession and the

           appellant is entitled to retain possession."

Ex.F.A.No.6/2009 & con. cases

                                  -: 44 :-

Based on the decision in Anwarbi (supra), the learned

Senior counsel argued that if at all the decree-holder is

entitled to get the obstructions raised by these appellants

removed in execution of the decrees, unless and until the

resistance is legally removed, the persons who are in

peaceable possession of the property at present are entitled

to protect their possession and to retain the property with

them.

       42. Both the learned Senior counsel for the appellants

relied on Brahmdeo Chaudhary Vs. Rishikesh Prasad

Jaiswal and another [(1997) 3 SCC 694] in which all the

aspects relating to Order XXI Rules 97, 98, 99, 101, etc.

were subjected to a threadbare examination by the Apex

court. In the case relating to that decision, on 25.04.1991,

the    decree-holder        obtained     warrant for delivery of

possession. The delivery attempted to be effected by the

bailiff was resisted and obstructed by the appellant and his

brothers named Sitaram Chaudhary and Jago Chaudhary

Ex.F.A.No.6/2009 & con. cases

                                -: 45 :-

along with 20 - 25 persons. Then, instead of applying under

Order XXI Rule 97 of the Code for the removal of the

obstruction, the decree-holder filed an application on

06.05.1991 for a fresh warrant of delivery with the aid of

armed force. At that stage, the appellant filed an application

to stay the issuance of the warrant and to decide his

objections. The decree-holder filed a rejoinder challenging

the maintainability of the objections raised by the appellant.

The     execution      court, without   adjudicating upon the

objections of the appellant on merits and without deciding

whether the obstruction or resistance offered by him was

legally justified, dismissed the application filed by the

appellant. At that time, the execution court took the view

that the course opened to the appellant was to wait till

dispossession and then to file an application for his re-

induction under Order XXI Rule 99 of the Code. It was in

that background, the Apex court examined the scope of

Order XXI Rules 35 and 97 and the other related provisions.

Ex.F.A.No.6/2009 & con. cases

                                 -: 46 :-

       43.    In paragraph 5 of the decision in Brahmdeo

Chaudhary(supra), the Apex court held:

           "A mere look at the aforesaid provision shows

           that    warrant    for   possession   can  be

           straightaway      sought      against  persons

           occupying      immovable     property which is

           subject-matter of decree by the decree-holder

           provided such persons who are occupying the

           suit property are judgment-debtors or persons

           claiming     through  the     former. We   are

           concerned with the situation in which the

           appellant resisted the execution proceedings

           on the ground that he was a stranger to the

           decree and claimed an independent interest in

           the suit immovable property possession of

           which was decreed in favour of Respondent 1

           decree-holder. The Nazir in his report dated

           28-4-1991 has noted that the warrant for

           possession could not be executed on spot on

           account of the resistance and obstruction

           offered by the appellant, amongst others.

           Once that report was received by the

           Executing Court Respondent 1 decree-holder

           naturally became alive to the fact of such

Ex.F.A.No.6/2009 & con. cases

                                    -: 47 :-

           resistance on spot by the appellant, amongst

           others.   Thereafter     when he       moved  the

           application on 6-5-1991 for issuance of fresh

           warrant for possession with the help of police

           force though the application purported to be

           under Order 21, Rule 35 it would strictly not

           fall within that provision as the decree-holder

           wanted     to    bypass     the   obstruction and

           resistance offered by a stranger to the decree,

           namely, the appellant who was not claiming

           any right, title or interest through the judgment-

           debtor. Whether his claim was right or wrong

           on merits is a different matter. But once such

           resistance was offered by him the proper

           procedure which was required to be followed

           by Respondent 1 decree-holder was the one

           contemplated by Order 21, Rule 97 CPC."

The Apex court took the view that in that particular case, the

act of the decree-holder in applying for re-issuance of the

delivery warrant and the aid of the police force for such

delivery, was nothing but an attempt to bypass an

adjudication under Order XXI Rule 98(2) of the Code.

       44. In Brahmdeo Chaudhary (supra), the Apex court

Ex.F.A.No.6/2009 & con. cases

                                  -: 48 :-

held in paragraph 7:

           "In an application under Order 21, Rule 97

           moved by a decree-holder who complains

           about the resistance or obstruction offered by

           any person to the decree-holder in his attempt

           at obtaining delivery of the property and who

           wants such obstruction or resistance to be

           removed which otherwise is an impediment in

           his way, a lis arise between the decree-holder

           applicant, under Order 21 Rule 97 on the one

           hand and the obstructionist on the other hand,

           to whom service of summons as per Form

           No.40 in Appendix E CPC should have

           served. When such lis arises, it has to be

           adjudicated upon as enjoined by Order 21

           Rule 97(2) CPC. The Apex court held that the

           procedure for adjudicating such a lis has to be

           culled out from the remaining succeeding

           Rules of Order 21."

       45.     The Apex court has evolved the principles

emanate from Order XXI Rules 97, 98, 99 and 101 in

Brahmdeo Chaudhary (supra) as follows:-

           "(1)  If   a    decree-holder, is resisted   or

Ex.F.A.No.6/2009 & con. cases

                                -: 49 :-

           obstructed in execution of the decree for

           possession with the result that the decree for

           possession could not be executed in the

           normal manner by obtaining warrant for

           possession under Order 21, Rule 35 then the

           decree-holder has to move an application

           under Order 21, Rule 97 for removal of such

           obstruction and after hearing the decree-

           holder and the obstructionist the Court can

           pass appropriate orders after adjudicating

           upon the controversy between the parties as

           enjoined by Order 21, Rule 97 sub-rule (2)

           read with Order 21, Rule 98. It is obvious that

           after such adjudication of it is found that the

           resistance or obstruction was occasioned

           without just cause by the judgment-debtor or

           by some other person at his instigation or on

           his behalf then such obstruction or resistance

           would be removed as per Order 21, Rule 98

           sub-rule (2) and the decree-holder would be

           permitted to be put in possession. Even in

           such an eventuality the order passed would

           be treated as a decree under Order 21, Rule

           101 and no separate suit would lie against

           such order meaning thereby the only remedy

Ex.F.A.No.6/2009 & con. cases

                                   -: 50 :-

           would be to prefer an appeal before the

           appropriate appellate court against such

           deemed decree.

                 (2)     If for any reason a stranger to the

           decree is already dispossessed of the suit

           property relating to which he claims any right,

           title or interest before his getting any

           opportunity to resist or offer obstruction on

           spot on account of his absence from the place

           or for any other valid reason then his remedy

           would lie in filing an application under Order

           21,   Rule      99,   CPC      claiming  that his

           dispossession was illegal and that possession

           deserves to be restored to him. If such an

           application is allowed after adjudication then

           as enjoined by Order 21, Rule 98 sub-rule (1),

           CPC the Executing Court can direct the

           stranger applicant under Order 21, Rule 99 to

           be put in possession of the property or if his

           application is found to be substanceless, it

           has to be dismissed. Such an order passed by

           the   Executing       Court     disposing of  the

           application one way or the other under Order

           21, Rule 98 sub-rule (1) would be deemed to

           be a decree as laid down by Order 21, Rule

Ex.F.A.No.6/2009 & con. cases

                                 -: 51 :-

           103    and     would  be     appealable   before

           appropriate appellate forum. But no separate

           suit would lie against such orders as clearly

           enjoined by Order 21, Rule 101."

       46. It was further held therein that:

           "In short the aforesaid statutory provisions of

           Order 21 lay down a complete code for

           resolving all disputes pertaining to execution

           of decree for possession obtained by a

           decree-holder     and    whose     attempts   at

           executing the said decree meet with rough

           weather. Once resistance is offered by a

           purported stranger to the decree and which

           comes to be noted by the executing court as

           well as by the decree-holder the remedy

           available to the decree-holder against such an

           obstructionist is only under Order 21, Rule 97

           sub-rule (1) and he cannot bypass such

           obstruction and insist on re-issuance of

           warrant for possession under Order 21, Rule

           35 with the help of police force, as that course

           would       amount     to     by-passing    and

           circumventing the procedure laid down under

           Order 21, Rule 97 in connection with removal

Ex.F.A.No.6/2009 & con. cases

                                 -: 52 :-

           of obstruction of purported strangers to the

           decree."

       47. In paragraph 9 of Brahmdeo Chaudhary (supra),

it was further held:

           "The view taken by the High Court in this

           connection also results in patent breach of

           principles     of  natural    justice as   the

           obstructionist    who alleges    to  have any

           independent right, title and interest in the

           decretal property and who is admittedly not a

           party to the decree even though making a

           grievance right in time before the warrant for

           execution is actually executed, would be told

           off the gates and his grievance would not be

           considered or heard on merits and he would

           be thrown off lock, stock and barrel by use of

           police force by the decree-holder. That would

           obviously result in irreparable injury to such

           obstructionist whose grievance would go

           overboard without being considered on merits

           and such obstructionist would be condemned

           totally unheard. Such an order of the

           executing court, therefore, would fail also on

           the ground of non-compliance with basic

Ex.F.A.No.6/2009 & con. cases

                                 -: 53 :-

           principles of natural justice. On the contrary

           the statutory scheme envisaged by Order 21,

           Rule 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 Order 21, Rules 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."

       48. The Apex court has held that in a case wherein the

obstructionist, who claims any independent right, title and

interest in the properties sought to be delivered, even when

making the grievance that his rights were not adjudicated in

Ex.F.A.No.6/2009 & con. cases

                                 -: 54 :-

the suit as he was not made a party to the suit, if told off the

gates without having recourse to the provisions of Order XXI

Rule 97, that would obviously result in irreparable injury to

such obstructionist whose grievance would go overboard

without being considered on merits. The result is that such

obstructionist would be condemned totally unheard, and

such an order of the executing court would fail also on the

ground of non-compliance with the solemn principles of

natural justice.

       49.     In paragraph 10 of Brahmdeo Chaudhary

(supra), it was held:

           "In this connection we may also profitably refer

           to a judgment of a Bench of three learned

           judges of this Court in the case of Bhanwar Lal

           v. Satyanarain. In that case the Bench

           consisting of K. Ramaswamy, S. C. Agrawal,

           and N. Venkatachala, JJ., had to consider a

           parallel fact situation. One Satyanarain had

           obstructed to the delivery of possession of the

           suit immovable property which was sought to

Ex.F.A.No.6/2009 & con. cases

                                 -: 55 :-

           be obtained in execution by the appellant

           decree-holder. After such an obstruction was

           offered by Satyanarain the decree-holder

           moved an application under Order 21, Rule 35

           for police assistance to remove obstruction

           caused by Satyanarain. The Executing Court

           directed    the   decree-holder  to make    an

           application under Order 21, Rule 97. This

           Court took the view that the very application

           under Order 21, Rule 35 sub-rule (3) for police

           assistance for removal of obstruction caused

           by Satyanarain had to be treated to be an

           application under Order 21, Rule 97 and such

           an application was maintainable and could not

           be said to be beyond limitation."

       50. The Apex court has laid down the law that in such

a case where the decree-holder comes up with an

application for re-issuance of warrant for delivery with police

aid under Order XXI Rule 35 of the Code, such an

application should be construed and considered as an

application for adjudication within the meaning of Order XXI

Rule 97 of the Code. The Apex court has relied on the

Ex.F.A.No.6/2009 & con. cases

                                 -: 56 :-

decision in Bhanwar Lal Vs. Satyanarain and another

[(1995) 1 SCC 6], wherein it was held in paragraphs 5 and 6

as follows:

           "The procedure has been provided in Rules

           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 Order 21, Rules 98 to 102. A reading of

           Order 21, Rule 97 C.P.C. clearly envisages

           that    "any    person"   even  including    the

           judgment-debtor irrespective of whether he

           claims derivative title from the judgment-

           debtor or set up his own right, title or interest

           de hors the judgment-debtor and he resists

           execution of a decree, then the court in

           addition to the power under Rule 35(3) has

           been empowered to conduct an enquiry

           whether the obstruction by that person in

           obtaining possession of immovable property

           was legal or not. The decree-holder gets right

           under Rule 97 to make an application against

           third parties to have his obstruction removed

           and an enquiry thereon could be done. Each

           occasion      of   obstruction or    resistance

Ex.F.A.No.6/2009 & con. cases

                                 -: 57 :-

           furnishes cause of action to the decree-holder

           to make an application for removal of the

           obstruction or resistance by such person.

                 When the appellant had made the

           application on 25-5-1979 against Satyanarain,

           in law it must be only the application made

           under Order 21, Rule 97(1) of C.P.C. The

           executing court, obviously, was in error in

           directing to make a fresh application. It is the

           duty of the executing court to consider the

           averments in the petition and consider the

           scope of the applicability of the relevant rule.

           On technical ground the executing court

           dismissed the second application on limitation

           and also the third application, on the ground

           of res judicata which the High Court has in the

           revisions now upheld. The Procedure is the

           handmaid of substantive justice but in this

           case it has ruled the roost."

After the detailed discussion of all the aspects, the Apex

court took the view that the settled legal position would be

that the application filed by the decree-holder for the re-

issuance of warrant of delivery with police aid is in

Ex.F.A.No.6/2009 & con. cases

                                -: 58 :-

substance an application under Order XXI Rule 97(2) read

with Order XXI Rule 101 and Order XXI Rule 98 of the

Code. The procedure laid down by Order XXI Rule 105 has

to be applied for such an adjudication. It seems that the

procedure contained in the 'complete code under Order XXI

Rules 97, 98, 101 and 105 have not been mentioned or

considered by this court in judgment dated 25.03.2008 W.P.

(C)32951/2006. From all the discussions made above, it has

come out that the argument of the appellants that the said

judgment is per incurium against Order XXI Rules 97, 98,

101 and 105 of the Code, seems to be correct.

       51. The learned Senior counsel Sri.Krishnanunni for

the decree-holders has expressed an apprehension that if

all such obstructions being caused at the time of delivery

are being considered as one under Order XXI Rule 97(2) for

the purpose of adjudication, it will be a never ending

process and any person can come up with such resistance

repeatedly claiming an adjudication, thereby the fruit of the

Ex.F.A.No.6/2009 & con. cases

                                 -: 59 :-

decree will be denied to the decree-holder. In answer to it,

the learned Senior counsel appearing for the appellants

have invited the attention of this Court to paragraph 12 of

Brahmdeo Chaudhary (supra), wherein the Apex court

held:

           "This submission though prima facie looking

           attractive on a closer scrutiny does not remain

           well sustained. Even though the Nazir's report

           mentions the obstructions offered by Sitaram

           Chaudhary,       Jago  Chaudhary,       Brahmdeo

           Chaudhary and others, only the appellant

           objected to the order passed by the executing

           court on respondent 1's application dated 6-5-

           1991 for issuance of a fresh warrant for

           delivery of possession with the aid of police

           force. Only he put forward his written

           objections on 22-1-1996. Neither of his

           brothers, namely, Sitaram Chaudhary or Jago

           Chaudhary nor anyone else filed any objection

           to the said application for issuance of fresh

           warrant for possession with the police aid.

           Therefore, it must be held that the only

           objectionist to remain in the field claiming to be

Ex.F.A.No.6/2009 & con. cases

                                 -: 60 :-

           a stranger having any right, title and interest in

           the suit property is the appellant and no one

           else. The others who might have resisted on

           spot on 28-4-1991 must be treated to have

           given up their obstructions and resistance

           subsequently and have gone out of picture. It

           must, therefore, be held that only the appellant

           is the sole surviving obstructionist whose claim

           regarding the alleged independent right, title

           and interest in the decretal property has to be

           adjudicated upon by the executing court under

           Order 21, Rule 97, sub-rule (2) CPC pursuant

           to the present order. The executing court shall

           not entertain objection or obstruction from any

           other party or person."

       52.    The Apex court has held that no other person

could obstruct the delivery in that case, as an adjudication

under Order XXI Rule 97 and the succeeding provisions are

meant for the adjudication of the obstructions and resistance

offered by the persons who obstructed and resisted the

delivery at the attempt for delivery alone could be

considered. The said findings entered by the Apex court is

Ex.F.A.No.6/2009 & con. cases

                                -: 61 :-

squarely applicable to the facts and circumstances of these

cases also.       Rightly or wrongly, this Court had ordered

publication of notice in the judgment in the W.P.(C). Such a

notice was published. The appellants came up with their

objections. In such case, it cannot be apprehended that

there is room for any further adjudication of any disputes

that may be raised by any persons other than these

appellants.      When the Apex court has concluded that in

such a case the adjudication of the obstructions is confined

to the obstructions caused by the persons who obstructed

the delivery at the time when the delivery was attempted to

be effected, there is no room for any such apprehension as

forwarded by the learned Senior counsel for the decree-

holders.

       53.    The learned Senior counsel for the appellants

have relied on the decision in Shreenath and another Vs.

Rajesh and others [(1998) 4 SCC 543], wherein it was held

in paragraphs 10 and 11:

Ex.F.A.No.6/2009 & con. cases

                                  -: 62 :-

           "Order 21, Rule 97 conceives of resistance or

           obstruction to the possession of immovable

           property when made in execution of a decree

           by "any person". This may be either by the

           person bound by the decree, claiming title

           through       judgment-debtor       or     claiming

           independent right of his own including tenant

           not party to the suit or even a stranger. A

           decree-holder, in such case, may make an

           application to the Executing Court complaining

           such resistance, for delivery of possession of

           the   property. Sub-clause        (2)   after   1976

           substitution empowers the executing courts

           when such claim is made to proceed to

           adjudicate upon the applicant's claim in

           accordance        with    provisions      contained

           hereinafter. This refers to Order 21, Rule 101

           (as amended by 1976 Act) under which all

           questions relating to right, title or interest in the

           property arising between the parties under

           Order 21, Rule 97 or Rule 99 shall be

           determined by the Court and not by a separate

           suit. By the amendment, one has not to go for

           a fresh suit but all matter pertaining to that

           property even if obstructed by a stranger is

Ex.F.A.No.6/2009 & con. cases

                                  -: 63 :-

           adjudicated and finality given even in the

           executing      proceedings.      We     find   the

           expression "any person" under sub-clause (1)

           is used deliberately for widening the scope of

           power so that the executing court could

           adjudicate the claim made in any such

           application under Order 21 Rule 97. Thus by

           the use of the words 'any person' it includes all

           persons resisting the delivery of possession,

           claiming right in the property even those not

           bound by the decree, includes tenants or other

           persons claiming right on their own including a

           stranger.

                 So, under Order 21, Rule 101 all disputes

           between the decree-holder and any such

           person is to be adjudicated by the executing

           court. A party is not thrown out to relegate itself

           to the long drawn out arduous procedure of a

           fresh suit. This is to salvage the possible

           hardship both to the decree-holder and other

           person claiming title on their own right to get it

           adjudicated in the very execution proceedings.

           We find that Order 21, Rule 35 deals with

           cases of delivery       of possession      of an

           immovable property to the decree-holder by

Ex.F.A.No.6/2009 & con. cases

                                  -: 64 :-

           delivery of actual physical possession and by

           removing any person in possession who is

           bound by a decree, while under Order 21 Rule

           36 only symbolic possession is given where

           tenant is in actual possession. Order 21 Rule

           97, as aforesaid, conceives of cases where

           delivery of possession to decree-holder or

           purchaser is resisted by any person. 'Any

           person', as aforesaid, is wide enough to

           include even a person not bound by a decree

           or claiming right in the property on his own

           including that of a tenant including stranger."

       54. In Brahmdeo Chaudhary (supra), it was held that

the statutory provisions of Order XXI lay down a complete

code for resolving all disputes pertaining to execution of the

decree for possession obtained by a decree-holder, and

whose attempt at executing decree meets with a rough

weather. Any attempt to have a short cut without having

recourse to the said provisions are nothing but an attempt to

circumvent or bypass the provisions of that complete code.

The earlier sub-clause (2) of Order XXI Rule 97 was :

Ex.F.A.No.6/2009 & con. cases

                                -: 65 :-

             "The court shall fix a day for investigating

             the matter and shall summon the party

             against whom the application is made to

             appear and answer the same".

The same was substituted by the 1976 amendment with the

present sub-clause (2) which reads:

              "Where an application is made under

              sub-rule 1, the court shall proceed to

              adjudicate     upon   the  application in

              accordance with the provisions herein

              contained."

When the legislature has in its wisdom decided to get the

matters adjudicated and not merely investigated, the

adjudication has to be strictly done under that complete

code which provides such an adjudication.

       55. By relying on the decision in Noorduddin Vs. Dr.

K.L. Anand (1995) 1 SCC 242], the Apex court held in

Shreenath(Supra) that by necessary implication, the

legislature relegated the parties to an adjudication of right,

Ex.F.A.No.6/2009 & con. cases

                                -: 66 :-

title or interest in the immovable property under execution,

and finality has been accorded to it. Thus, the scheme of

the Code appears to be to put an end to the protraction of

the execution and to shorten the litigation between the

parties or persons claiming right, title and interest in the

immovable property in execution. When such a finality has

been accorded by the legislature after taking away the right

to file an independent suit which existed in the Code prior to

the 1976 amendment, it is not the scheme of the amended

Code to show the obstructionist the doors or gate off without

a proper adjudication of all questions relating to their rights,

title and interest within the meaning of Order XXI Rule 101

of the Code.

       56. The learned Senior Counsel Sri.S.V.Balakrishna

Iyer has invited the attention of this Court to the decision in

Babu Raj Vs. Vasanthi Devi [2008 (4) KLT 761] rendered

by a learned Single Judge of this Court, which was later

approved by a Division Bench of this Court with slight

Ex.F.A.No.6/2009 & con. cases

                                -: 67 :-

modifications. In Babu Raj (supra) it was held:

           "Where the holder of a decree for possession

           of    immovable    property   is  resisted    or

           obstructed in obtaining possession by any

           person on a ground which appears to

           necessitate an investigation, then the court

           cannot direct removal of such resistor or

           obstructor under Order XXI Rule 35 CPC and

           in such a contingency, the court will have to

           recourse to Order XXI Rule 97 CPC by

           proceeding to adjudicate upon an application

           filed by the decree-holder complaining of such

           resistance or obstruction".

Except in the use of the term "investigation", this Court is in

full agreement with the said legal proposition.

       57. In paragraph 11 of Babu Raj (supra), it was held:

           "The nature of the order to be passed after

           adjudication in cases involving resistance or

           obstruction by strangers to the decree, is to be

           found in Rule 100 of Order XXI CPC and not

           in Rule 98 of Order XXI CPC."

This Court respectfully disagree with the said principle

Ex.F.A.No.6/2009 & con. cases

                                -: 68 :-

enunciated by the learned Single Judge, as it does not

reflect the correct interpretation of the legal provisions. A

Division Bench of this Court in Unnikrishnan Vs.

Kunhibeevi [2011 (1) KLT 508], held that "the provisions

contained under Order XXI Rule 92 to 103 CPC lay down a

complete code by themselves for resolving all disputes

pertaining to the execution of a decree for possession of

immovable property". It was held therein that:

           "View expressed in Baburaj's case to take

           exception to the principles laid down in

           paragraphs 7, 8 and 11 in Brahmdeo

           Chaudhary's case, holding that R.98 of O.XXI

           of the Code covers only cases involving

           restrictions or obstructions by a judgment-

           debtor or by some other persons on behalf or

           by a transferee pendente lite, and that the

           procedure for adjudication of the applications

           under Rr.97 and 99 of O.XXI of the Code is

           under Rr.105 and 106 of that Order, is not

           correct."

       58. The learned Senior Counsel Sri.S.V.Balakrishna

Ex.F.A.No.6/2009 & con. cases

                                -: 69 :-

Iyer has pointed out that except for the aforesaid small

portion in the decision in Babu Raj (supra), all the other

observations and findings in the judgment hold the field

correctly, and reiterate the correct legal position enunciated

by the Apex court through the decisions discussed in the

judgment. This Court is in full agreement with the said view

expressed by the learned Senior Counsel.

       59.    The learned Senior counsel for the appellants

have further argued that when the legislature has directed to

act in a particular manner, and when the failure of the same

results in consequences, a decision rendered by deviating

from the said manner, will not operate as res judicata or

estoppel. They have relied on the decision in Allahabad

Development Authority Vs. Nasiruzzaman and others

[(1996) 6 SCC 424], wherein it was held in paragraph 6:

           "In view of the above ratio, it is seen that when

           the legislature has directed to act in a

           particular manner and the failure to act results

           in a consequence, the question is whether the

Ex.F.A.No.6/2009 & con. cases

                                   -: 70 :-

           previous order operates as res judicata or

           estoppel as against the persons in dispute.

           When the previous decision was found to be

           erroneous on its face, this Court held in the

           above judgment that it does not operate as res

           judicata.     We respectfully follow the ratio

           therein.     The principle of estoppel or res

           judicata does not apply where to give effect to

           them would be to counter some statutory

           direction or prohibition. A statutory direction or

           prohibition cannot be overridden or defeated

           by a previous judgment between the parties.

           In view of the fact that land had already stood

           vested      in    the   State    free   from   all

           encumbrances, the question of divesting does

           not arise. After the vesting has taken place,

           the question of lapse of notification under

           Section 4(1) and the declaration under Section

           6 would not arise.          Considered from this

           perspective,      original  direction itself was

           erroneous and the later direction with regard

           to delivery of possession of the land, in

           consequence, was not valid in law."

       60. In order to fortify his argument that the judgment

Ex.F.A.No.6/2009 & con. cases

                                  -: 71 :-

rendered by this Court in W.P.(C) No.3281/2006 is a non est

in the eye of law, and the same has resulted in making all

the subsequent proceedings based on it also as non est, the

learned Senior counsel Sri.R.D.Shenoy has relied on the

decision in Kshitish Chandra Bose Vs. Commissioner of

Ranchi [AIR 1981 SC 707], wherein it was held in

paragraph 6:

           "In this view of the matter we are of the

           opinion that it is open to the appellant to assail

           even the first judgment of the High Court and if

           we hold that this judgment was legally

           erroneous       then   all     the   subsequent

           proceedings,namely, the order of remand, the

           order passed after remand, the appeal and the

           second judgment given by the High Court in

           appeal against the order of remand would

           become non est."

In paragraph 13, it was further held that when such an order

was passed without jurisdiction, the logical result is that

such an order of remand and all proceedings taken

Ex.F.A.No.6/2009 & con. cases

                                 -: 72 :-

thereafter based on such a remand order would become

void ab initio.

       61.    In Satyadhyan Ghosal and others Vs. Smt.

Deorajin Debi and another [AIR 1960 SC 941], it was held

in paragraph 16:

           "A special provision was made as regards

           orders of remand and that was to the effect

           that if an appeal lay and still the appeal was

           not taken the correctness of the order of

           remand could not later be challenged in an

           appeal from the final decision. If however an

           appeal did not lie from the order of remand the

           correctness thereof could be challenged by an

           appeal from the final decision as in the cases

           of other interlocutory orders. The second sub-

           section did not apply to the Privy Council and

           can have no application to appeals to the

           Supreme Court, one reason being that no

           appeal lay to the Privy Council or lies to the

           Supreme Court against an order of remand."

       62. In Jasraj Indersingh Vs. Hemraj Multanchand

[AIR 1977 SC 1011], it was held:

Ex.F.A.No.6/2009 & con. cases

                                  -: 73 :-

           "In an appeal against the High Court's finding,

           the Supreme Court is not bound by what the

           High Court might have held in its remand

           order. It is true that a subordinate court is

           bound by the direction of the High Court. It is

           equally true that the same High Court, hearing

           the matter on a second occasion or any other

           court of co-ordinate authority hearing the

           matter cannot discard the earlier holding, but a

           finding in a remand order cannot bind a higher

           Court when it comes up in appeal before it.

           This is so because the remand order by the

           High Court is a finding in an intermediate

           stage of the same litigation. When it came to

           the trial Court and escalated to the High Court,

           it remained the same litigation. The appeal

           before the Supreme Court is from the suit as a

           whole and, therefore, the entire subject matter

           is   available    for adjudication  before   the

           Supreme Court. If, on any other principle of

           finality statutorily conferred or on account of

           res judicata attracted by a decision in an allied

           litigation the matter is concluded the Supreme

           Court too is bound. Otherwise, the whole lis

           for the first time comes to the Supreme Court

Ex.F.A.No.6/2009 & con. cases

                                -: 74 :-

           and the High Court's finding at an intermediate

           stage does not prevent examination of the

           position of law by the Supreme Court.

           Intermediate stages of the litigation and orders

           passed at those stages have a provisional

           finality."

In Mangal Prasad Tamoli Vs. Narvedshwar Mishra [AIR

2005 SC 1964], the very same legal principles were

enunciated by relying on the decisions noted in Satyadhyan

Ghosal (supra) and Kshitish Chandra Bose (supra).

       63. A Division Bench of this Court has also relied on

the aforesaid decision of the Apex court in the matter and

held in Mathew Varkey Vs. Abraham [2001 (1) KLT 432]

that any court of co-ordinate authority hearing the matter

cannot discard the earlier holding, but a finding in a remand

order cannot bind a superior court when it comes up in

appeal before it. The argument in short is that those

observations         made    in  the     judgment     in   W.P.(C)

No.32981/2006, which are almost having the effect of

Ex.F.A.No.6/2009 & con. cases

                                   -: 75 :-

findings rendered in the matter, have resulted in substantial

miscarriage of justice and, therefore, it is open to the

appellants to challenge the correctness of the judgment in

the W.P.(C), even ultimately in an appeal before the Apex

court.

       64.     Both the Senior counsel appearing for the

appellants are relying on the decision in Lakshmi Vs.

Viswanathan [1999 (2) KLT 621], wherein it was held:

           "A cultivating tenant is a person always in

           possession of the property concerned. Such a

           certificate is issued by a competent Land

           Tribunal after finding that he was in possession

           of the scheduled properties as a cultivating

           tenant. S.72K(2) says that such a certificate

           when issued shall be conclusive proof of the

           assignment to the tenant of right, title and

           interest    of    the  land     owner  and  the

           intermediaries if any over the holding or

           portion thereof to which assignment relates.

           Tenant means a cultivating tenant always in

           possession of the proceedings. Therefore,

           such certificate is the conclusive proof of

Ex.F.A.No.6/2009 & con. cases

                                  -: 76 :-

           possession as well. Unless that certificate is

           set aside by a competent authority or in a

           court of law, the statutory enforcement in

           terms of S.72K(2) has to be honoured and a

           person claiming on the basis of such purchase

           certificate has to be taken as in possession of

           the properties."

The aid of the decision in Lakshmi (supra) has been

canvased to show that the appellants have a bona fide claim

and when they have such a bona fide claim, the

obstructions raised by them could not have been weeded

out as unnecessary at the threshold, without having a

determination through an adjudication.

       65. They have canvased another legal position that

the    judgment        passed    by      this Court  in   W.P.(C)

No.32981/2006 has even resulted in depriving of the

appellants their right to property conferred by Article 300A of

the Constitution of India and thereby, it has got a serious

repercussion on the right to life, which involves right to

livelihood of the appellants under Article 21 of the

Ex.F.A.No.6/2009 & con. cases

                                -: 77 :-

Constitution of India. As per Article 300A, a person cannot

be deprived of his property save by authority of law. When a

specific procedure to decide a question relating to the right,

title or interest in an immovable property relating to an

obstructionist is specified through the concerned provisions

of Order XXI, which forms a complete code, any deviation

from that prescribed procedure cannot claim the authority of

law, and the same will be a violation of Article 300A of the

Constitution of India. When they are deprived of such a

right to property, that will result in the denial of their right to

livelihood, which will also be a violation of Article 21 of the

Constitution.     When such serious questions are involved,

the court below could not have passed the impugned order

without a proper adjudication as contemplated by law. When

no such adjudication was made, it cannot be said that the

impugned order was passed by the court below with the

authority of law.

       66. Transferees pendente lite, even if the appellants

Ex.F.A.No.6/2009 & con. cases

                                -: 78 :-

are considered as transferees pendente lite, are not in the

status of mere trespassers. Of course, as per law, a

trespasser is not entitled to protect his possession after

having committed a trespass. At the same time, even if it is

conceded that the appellants are transferees pendente lite

and when they are not claiming the rights as transferees

pendente lite from the judgment-debtors, their status is not

the same as that of trespassers. In such case, they can

retain possession of the property till they are evicted by due

process of law. Any short cut or deviation from the due

procedure contemplated by law will result in violation of all

legal norms. Such persons holding properties cannot be

thrown out through any such short cut.

       67. It is true that a proper adjudication as contained in

the complete code in the scheme under Order XXI may take

time.    At the same time, as pointed out by the learned

Senior counsel Sri.R.D.Shenoy that by merely stating that it

may take        time,     any new     procedure  which  is  not

Ex.F.A.No.6/2009 & con. cases

                                -: 79 :-

contemplated under the provisions of law cannot be

adopted. This Court also cannot lay down a new procedure

in such cases wherein there are serious repercussion. It

seems that through the judgment in W.P.(C) No.32981/2006,

a blank cheque has been given to the court below to pass

an order on the very same lines as directed by this Court in

the said judgment.           The court below was directed to

determine whether there is any scope for any further enquiry

into the claims of the obstructionists.     It was also found

therein that transferee pendente lite will be bound by the

decree. It cannot be said that all transferees pendente lite

are bound by the decree.

       68. Of course, a transferee pendente lite from the

judgment-debtor can be said to be a person bound by the

decree.     If he is not a transferee pendente lite from the

judgment-debtor, it cannot be said that he is always bound

by the decree. Of course, within the limited meaning of

Section 13 of the Indian Evidence Act, the decree already

Ex.F.A.No.6/2009 & con. cases

                                -: 80 :-

passed which is not inter parties, is relevant in the matter of

an adjudication between persons who are not parties to the

decree. Apart from such relevancy and admissibility of such

a decree as a piece of evidence, it cannot be said that all

decrees, which are not inter parties are to be treated as

decrees in rem. The decrees in question were not passed

in suits by having recourse to the provisions of Order I Rule

8 of the Code. All the said decrees cannot be treated as

decrees in rem, whereas, those are decrees in personam,

which of course, is binding on the parties to it. As aforesaid,

apart from its relevancy and admissibility under the limited

scope of Section 13 of the Indian Evidence Act, it cannot be

said that all the transferee pendente lite even if the

appellants are considered to be so, who are not claiming as

transferee pendente lite from the judgment debtors, are

persons bound by the decree.

       69.     Regarding the burden of proof relating to

obstructions, divergent views have been expressed in

similar matters. One view is that the burden is entirely on

the obstructionist for a determination of his right, title or

interest to be adjudicated. Another view is that, the decree-

holder, even though he is clothed with a decree which is not

inter parties, cannot be absolved from his burden to prove

his right or title over the property. When the obstructionists

are capable of showing that they have some rights, title or

interest over the immovable properties, which are to be

adjudicated within the meaning of Order XXI Rule 101 CPC,

it cannot be said that the decree-holders, who are clothed

with a decree which is not inter parties, have no burden in

the matter. An adjudication under the complete code

contained in Order XXI Rule 97 and the related provisions is

admittedly in the form of a suit and the determination

through such an adjudication has the effect of a decree

within the meaning of Order XXI Rule 103 of the Code. In

such case, this Court is of the view that an obstructionist

has even the right to challenge the title of the decree-holder

also. Further, such an obstructionist has the right even to

challenge the executability or otherwise of the decree. If by

any means, the decree has become inexecutable, it cannot

be said that an obstructionist cannot raise such a question.

He can validly challenge the executability of the decree.

       70. A decree-holder cannot always rest in an arm chair

by possessing a decree by saying that he has got title, even

when the decree contains it. Article 129 of the Limitation Act

specifies the period of limitation for filing an application for

possession after removing resistance or obstruction to

delivery of possession of immovable property, as 30 days.

When the law says that such an application is for

possession, it involves an adjudication of his right to

possession. When it has to be considered as a suit, it

cannot be said that such an applicant has no burden at all.

       71. It seems that the court below has non-suited the

appellants by relying on the provisions of Kerala Private

Forests (Vesting and Assignment) Act, 1971 (`Vesting Act',

for short) also. It seems that a serious argument was taken

up by the learned counsel for the decree-holders before the

court below that the leases in favour of the appellants could

not be valid in view of Section 3(1) of the Vesting Act as well

as based on the Madras Preservation of Private Forests Act,

1949. The learned Senior Counsel Sri.S.V.Balakrishna Iyer

has pointed out that the said argument resorted to by the

decree-holders before the court below is a double edged

weapon. In such case, if it is admitted that the properties in

question were private forests as on the appointed day,

Section 3(1) of the Vesting Act will come into play. If Section

3(1) of the Vesting Act is invoked, Section 4 also will come

into play, which states that all private forests vested in the

government under sub-section (1) of Section 3, so long as

they remain vested in the government, are deemed to be

reserve forests. In such case, if it is argued that these are

private forests, definitely, the same must have been vested

in the government and consequently, it should be treated as

reserve forests within the meaning of Section 4 of the

Vesting Act. In such case, the decree-holders cannot claim

delivery, as an attempt to take possession of such property

is also an offence. It seems that the said question has not

been correctly decided by the court below.     The decree-

holders should not have relied on the provisions of the

Madras Preservation of Private Forests Act for getting the

appellants non-suited. They ought to have realized that it

would act as a double edged weapon as pointed out by the

learned Senior counsel for the appellants.

       72. The learned Senior counsel for the decree-holders

has argued that nobody has a case before the court below

that as on the appointed day, i.e., 10.05.1971, any of these

properties were private forests. At the same time, it seems

that     the court below has proceeded with under an

assumption that the said properties were parts of private

forests. If the decree schedule property being claimed by

the decree-holders is a private forest, the appellants being

obstructionists can raise that question also to see that the

decree has become inexecutable. In order to determine the

said question also, the matter ought to have been

adjudicated.      Without an adjudication, it seems that the

court below has determined that the leases in favour of the

appellants could not be valid leases. Further, it seems that

there are serious questions relating to the identity of the

decree schedule properties. This Court is not presently

going to the merits of those discrepancies with regard to the

identity. The court below ought to have decided the said

questions also and determined it through an adjudication.

       73. As pointed out, when there are serious questions

regarding the identity of the properties, and when it has to

be determined whether the properties being possessed by

the appellants are portions of the decree schedule property

and, also questions relating to the nature of the decree

schedule properties are there, it cannot be said that the

decree-holders have no burden at all. The appellants as

obstructionists are entitled to raise such questions of

identity, title etc. and to get it adjudicated. Similarly, it cannot

be said that the appellants are bound to swallow the title of

the decree-holders declared through the decrees. The

appellants have the right to challenge the title of the decree-

holders and to establish that the appellants have better

rights over the property than the decree-holders, even if the

properties are one and the same. All those questions are to

be determined through a proper adjudication.

       74.    The     learned    counsel    for   the   appellants

Sri.R.Rajesh Kormath has invited the attention of this Court

to the decision in Karthikeyan Vs. Deputy Commissioner

of Excise [2011 (1) KLT 334], wherein it was held in

paragraph 5:

          "More than a century and a quarter ago, in

          Taylor Taylor v. Taylor [(1871) 1 Ch D 426]., it

          was categorically laid down that where a power

          is given to do a certain thing in a certain way,

          that thing must be done that way, or not at all,

          and that other methods of performance are

          necessarily forbidden. When law prescribes

          the manner of exercising jurisdiction and

          confers power for that purpose, it has to be

          exercised in that manner only. This principle

          was applied by the Privy Council in Nazir

          Ahmed Nazir Ahmed v. Emperor (63 Ind App

          372). and also by the Apex Court in several

          cases, including Rao Shiv Bahadur Singh Rao

          Shiv Bahadur Singh & Anr. v. State of Vindh.P

          (AIR 1954 SC 322). and Deep Chand Deep

          Chand v. State of Rajasthan (AIR 1961 SC

          1527). In Banarsi       Das Banarsi      Das v.

          Brig.Maharaja Sukhjit Singh & Anr. (1998) 2

          SCC 81)., this position was reiterated by the

          Apex Court. In Babu Varghese Babu Varghese

          & Others v. Bar Council of Kerala & Ors. (1999

          (1) KLT 836 (SC) = (1999) 3 SCC 422)., the

          Apex Court laid down that it is a basic principle

          of law that if the manner of doing a particular

          action is prescribed under any statute, that act

          must be done in that manner or not at all. The

          Apex Court stated in Bhavnagar University

          Bhavnagar University v. Palitana Sugar Mill (P)

          Ltd. & Ors. (2003) 2 SCC 111)., that it is settled

          that when a statutory authority is required to do

          a thing in a particular manner, the same must

          be done in that manner or not at all. The State

          and other authorities, while acting under the

          statute, are only creatures of statute and they

          must act within the four corners thereof. The

          Apex Court noticed in Ramachandra Keshav

          Adke Ramachandra Keshav Adke v. Govind

          Joti Chavare & Ors. (AIR 1975 SC 915) that

          the said rule has stood the test of time. To the

          same view is the judgment of this Court in

          Shamin Sainudhen Shamin Sainudhen & Ors.

          v. Medical Council of India & Ors. (2010 (4)

          KLT 103 = 2010 (4) KHC 204 (D.B.))".

       75. From all the discussions made above, it can be

concluded that the outright denial to have an adjudication of

the claims regarding rights, title and interest forwarded by

these appellants, by the court below, has resulted in

substantial     miscarriage    of   justice.  Even though    the

impugned order was passed by the court below on the basis

of the judgment of this Court in W.P.(C) No.32981/2006, the

act of the court below in weeding out the claims raised by

these appellants without giving an opportunity for them to

get their claims adjudicated, cannot be justified. The

questions relating to the right, title and interest raised by

these appellants have to be determined through a proper

adjudication as contemplated under Order XXI Rule 97 and

its succeeding provisions of the self contained code relating

to such an adjudication. The court below has not complied

with the procedure contemplated under Order XXI Rule 105

CPC to have a determination through an adjudication. The

findings entered by the court below in the impugned order

that any questions do not arise for adjudication is totally

erroneous. The impugned order is, therefore, liable to be

set aside.

       76. The next course of action to be taken in the matter

has also to be considered. It is true that the decree-holders

had preferred E.A. Nos.508, 509 and 510 of 2006 in the

EPs. Admittedly, in those EAs., all these appellants were

impleaded. It seems that after getting a safe order through

the judgment in W.P.(C) No.32981/2006 from this Court, the

decree-holders had waived their right to get those EAs.

adjudicated and those EAs. were closed without any

adjudication. When the appellants are also parties in those

EAs., it is only just, proper, and expedient in the interest of

justice to have an adjudication of all those claims through

that EAs. Therefore, the course open to this Court at

present is to restore those EAs. and remit the same to the

court below for a de novo disposal through a proper

adjudication as contemplated by law. The court below shall

adjudicate the claims relating to the right, title and interest of

these appellants as well as the decree-holders by treating

the said EAs. independently, in accordance with the

complete code as aforesaid and to determine their individual

rights.

       77.    The learned Senior counsel for the appellants

have pointed out that in fact the appellants did not get an

opportunity to file proper pleadings, by way of applications,

as the court below has chosen to number the list of

documents with statements filed by the appellants before

the court below as EAs. for consideration. Therefore, the

parties shall be given an opportunity to file further pleadings

in the matter, if so advised. These matters being old, the

court below shall make every endeavor to dispose of all

these matters, as expeditiously as possible, at any rate,

within a period of one year from the date of receipt of a copy

of this judgment. The court below need not continue with the

E.A. numbers allotted to those list of documents filed by

these appellants. The E.A. numbers can be confined to E.A.

Nos.508, 509 and 510 of 2006. Further pleadings can be

filed in the said matters.

       In the result, these appeals are allowed and the

impugned common order is set aside. E.A. Nos.508, 509

and 510 of 2006 in the E.Ps. are restored and remitted to

the court below for fresh consideration and disposal in

accordance with law. The parties shall appear before the

court below on 29.09.2014. The court below shall dispose of

the same on merits, on the basis of the observations herein

before made, as expeditiously as possible, at any rate,

within a period of one year from the date of receipt of a copy

of this judgment. It is made clear that the court below shall

not accept any further applications or pleadings from any

persons other than the decree-holders and the present

appellants or their legal representatives in the matter.

       All the interlocutory applications in these appeals are

closed.

                                        B. KEMAL PASHA, JUDGE

ul/-

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