S. RAJESWARI versus S.N. KULASEKARAN AND ORS.

Citation: [2006] 3 S.C.R. 610 · Decided: 29-03-2006 · Supreme Court of India · Bench: B.P. SINGH · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
S. RAJESWARI 
v 
S.N. KlJLASEKARAN AND ORS. 
MARCH 29, 2006 
[B.P. SINGH AND AL TAMAS KABIR. JJ.] 
Cude of Civil Procedure, 1908--Sections I 5 I and I I 5-0rder XX! Rule 
97 -Possession of land claimed pursuant tu execution of decree--Dn 
C obstruction to delivery of possession, application filed under Section I 5 I 
CPC dismissed as not maintainahle afier recording of evidence--Against this. 
revision petition under Section 115 to High Court allowed-On appeal, held: 
Though application ought to hare heen filed under Order XX/, Rule <)7 
ins1ead uf Section 151. bw as executing court recorded evidence and thereupon 
adjudicated in the matter. it wos in suhstanc!! treated as under the former 
D provision-- But in this Fie11·. 1he order passed in 1hat proceeding must he 
treatl!d as a decree against 11hich unly an appeal lay tu appellate court, ,111d 
revision peti1iun unda s.:ction I 15 was not maintainable. 
Respondent no. I claimed possession of impugned land pursuant to execution 
E of a decree. Appellant obstructed delivery of possession on ground that the land 
lawfully belonged to her. On this, respondent no. I filed a petition under Section 
151 CPC before the executing court. The court recorded evidence but ultimately 
dismissed the petition as not maintainable. It was of the view that the application 
ought to have been filed under Order XXI Rule 97 CPC. Against this revision 
petition of respondent no.I High Court was allowed with directions for removal of 
F appellant from the impugned lands. Hence the present appeal. 
G 
Appellant contended that the application filed under section 151 CPC being 
not maintainable nothing survived for further consideration. 
Allowing the appeal, the Court 
HELD I. Respondent no.I ought to have filed an application under Order 
XXI, Ruic 97 of the Code of Civil Procedure. Order XXI, Rule 97 clearly provides 
that where execution of decree is resisted or obstructed by any person, the decree 
holder may make an application to the court complaining of such resistance or 
obstruction, !"hereupon the court shall proceed to adjudicate upon the application 
H 
610 
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S. RAJESWARI v. S.N. KULASEKARAN 
611 
in accordance with the provisions contained in the Code. Rules 98 to I 00 are the A , 
Rules which provide the manner in which such an application has to be dealt 
with. Under Rule IOI, all questions including question relating to right, title and 
interest of property arising between the parties to the proceeding and relevant to 
the adjudication of the application, have to be determined by the court dealing 
with the said application. Rule I03 provides that when an application is adjudicated B 
upon under Rule 98 or Rule 100, the order made thereon shall have the same 
force and be subject to the same conditions as to an appeal or otherwise as if it 
were a decree. It thus follows that if an application is made under Order XXI, 
Rule 97, which is adjudicated upon by the court, the adjudicatory order is treated 
as a decree against which an appeal may be filed. In the instant case, therefore, 
since the adjudicatory order passed by the executing court went against C 
respondent no.I, he ought to have filed an appeal before the High Court. 
1614-E-H; 615-AI 
2.1. The application filed by respondent no.I was one under Section 151 
CPC and not under Order XXI, Rule 97 CPC. But the executing court in 
substance treated it as an application under Order XXI, Rule 97 because it D 
proceeded to record evidence and thereupon adjudicated in the matter. Jn fact, the 
decree holder was also examined before the executing court. His evidence was 
also considered by the court in reaching the conclusion that the identity of the 
plot in question had not been established thereby, disabling the bailiff from 
executing the decree for possession of the land. 1615-B, CJ 
2.2. If the said application under Section 151, CPC is treated as one under 
Order XXI, Rule 97 CPC the order passed in that proceeding must be treated as 
a decree against which only an appeal lay to the appellate court. Respondent no.I 
did not appeal to the High Court and instead preferred a revision petition under 
section ll5 CPC. 1615-E] 
2.3. In view of the provision of Order XXI, Rule 103 CPC, no revision could 
be entertained by the High Court against that order in view of the clear prohibition 
contained in section 115(2) of the CPC, which in clear terms provides that the 
High Court shall not under Section 115 vary o

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