Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment

Judgment:

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
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			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
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			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2001(5)ALT8',
		'ratiodecidendi' => '',
		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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ORDER

P.S. Narayana, J.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
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		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2001(5)ALT8',
		'ratiodecidendi' => '',
		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:

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			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '2001(5)ALT8',
		'ratiodecidendi' => '',
		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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Aggrieved by the said order the third party objector had filed the present revision.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
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			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
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		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2001(5)ALT8',
		'ratiodecidendi' => '',
		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
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			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
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	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:

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			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '2001(5)ALT8',
		'ratiodecidendi' => '',
		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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'Order 21 Rule 35: (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.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
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			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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(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.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
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			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '2001(5)ALT8',
		'ratiodecidendi' => '',
		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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(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.'

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
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			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
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			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
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			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '2001(5)ALT8',
		'ratiodecidendi' => '',
		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
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		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2001(5)ALT8',
		'ratiodecidendi' => '',
		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
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			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '2001(5)ALT8',
		'ratiodecidendi' => '',
		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
		'sub' => 'Civil;Property',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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'102: 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.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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Explanation: In this rule transfer includes a transfer by operation of law.'

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
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			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
)
$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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		'pubs' => '2001(5)ALT8',
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		'respondent' => 'Kadali Narasanna and ors.',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
)
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10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.

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	'title_for_layout' => 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '446975',
			'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
			'appealno' => 'C.R.P. No. 2662 of 1990',
			'appellant' => 'Kadali Pullayya',
			'authreffered' => '',
			'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
			'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
			'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
			'court' => 'Andhra Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2001-07-10',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'P.S. Narayana, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">P.S. Narayana, J.</p><p style="text-align: justify;">1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p style="text-align: justify;">2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p style="text-align: justify;">3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p style="text-align: justify;">4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p style="text-align: justify;">'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p style="text-align: justify;">Aggrieved by the said order the third party objector had filed the present revision.</p><p style="text-align: justify;">5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p style="text-align: justify;">'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p style="text-align: justify;">'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p style="text-align: justify;">Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p style="text-align: justify;">Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p style="text-align: justify;">6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p style="text-align: justify;">'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p style="text-align: justify;">The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p style="text-align: justify;">'Order 21 Rule 35: (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.</p><p style="text-align: justify;">(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.</p><p style="text-align: justify;">(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p style="text-align: justify;">Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p style="text-align: justify;">(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.'</p><p style="text-align: justify;">The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p style="text-align: justify;">7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p style="text-align: justify;">'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p style="text-align: justify;">Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p style="text-align: justify;">Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p style="text-align: justify;">'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p style="text-align: justify;">Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p style="text-align: justify;">8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p style="text-align: justify;">9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p style="text-align: justify;">'102: 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.</p><p style="text-align: justify;">Explanation: In this rule transfer includes a transfer by operation of law.'</p><p style="text-align: justify;">10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2001(5)ALT8',
			'ratiodecidendi' => '',
			'respondent' => 'Kadali Narasanna and ors.',
			'sub' => 'Civil;Property',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'kadali-pullayya-vs-narasanna-ors',
	'args' => array(
		(int) 0 => '446975',
		(int) 1 => 'kadali-pullayya-vs-narasanna-ors'
	)
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$title_for_layout = 'Kadali Pullayya Vs Kadali Narasanna and ors - Citation 446975 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '446975',
		'acts' => 'Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules',
		'appealno' => 'C.R.P. No. 2662 of 1990',
		'appellant' => 'Kadali Pullayya',
		'authreffered' => '',
		'casename' => 'Kadali Pullayya Vs. Kadali Narasanna and ors.',
		'casenote' => ' - CANTONMENTS ACT[C.A. No. 41/2006]. Section 346 & Cantonment Fund (Servants Rules, 1937, Rules 13, 14 & 15: [H.L. Gokhale, Ag. CJ, P.V. Hardas, Naresh H. Patil, R.M. Borde & R.M. Savant, JJ] Jurisdiction of School Tribunal Constituted under Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, (3 of 1978)  Held, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board.  The School Tribunal constituted under Section 8 of the Maharashtra Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. Teacher employed in the School run by Cantonment Board being covered under Rule 2 (f) of the Cantonment Fund Servants Rules, 1937 can file appeal under Rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah. LJ 74; 1993 Lab IC 1858 Overruled]. -- MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATIONS ACT, 1978 
[Act No. 3/1978]. Sections 9 & 2(21): Jurisdiction of School Tribunal  Whether a School run by Cantonment Board is not a recognised school within the meaning of Section 2(21)? - Held, The Act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the Act shall apply to all private schools in the State whether receiving any grant-in-aid from the State Government or not. Private school is defined in Section 2(2) of the Act as a recognised school established or administered by a Management other than the Government or a local authority. Recognised means recognised by Director, the Divisional Board or State Board. Thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four Directors, the Divisional Boards and four State Boards. The second part of this definition which comes after the comma refers to any officer authorised by Director or by any of such Boards. The question to be examined is whether school run by the Cantonment Board could be said to be one run by any such Boards. A private school has to be recognised by the State or the Divisional Board or by any officer authorised in that behalf. When this phrase namely: recognised by any officer authorised by the Director or by any such Boards, is included in the latter part of Section 2(21), such Boards will be of the level of the State Board or the Divisional Board. The Boards referred to in the definition of the word recognised means the Boards which deal with education at levels other than that of the level at which Primary schools are operating. Thus for being recognised, the school has to be recognised by the Board and therefore, it has to be operating at a higher level i.e., secondary level. Section 2(21) of the Act defines the term recognised. The last clause therein is by any of such Boards. The term such is defined in Oxford Dictionary as of the kind or degree indicated or implied by the context. Therefore, the term such Board will have to mean a Divisional Board of or the Level of Divisional Board or the State Board. The Divisional Board holds the examination and issues certificates after 10th and 12th standard examinations. The State Board advises the State Government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. The Cantonment Board does not discharge any of such duties nor is there any other Board or body under the Cantonments Act discharging any such duties. The duties of the Cantonment Board are laid down in Section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. The Cantonment Board is not required to enter into the area of secondary education. Therefore, School run by the Cantonment Board is a primary school and it is not a school recognised by any such Board comparable to the Divisional Board or the State Board. That being the position, it is not possible to accept it to be a recognised school for being a private school under the Act. For the reasons state above, the School Tribunal constituted under Section 8 of the Act cannot entertain appeals filed under Section 9 by the employees working in schools which are established and administered by the Cantonment Board. [Deolali Cantonment Board v Usha Devidas Dongre, 1993 Mah.LJ 74; 1993 Lab IC 1858 Overruled].  -  Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. It is well settled that right to an adjudication is a procedural right. ' Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property. Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97..Thus, a person resisting delivery to invoke Order 21 Rule 97 C.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'Bhanoji and ;Dhananjaya, Advs.',
		'counseldef' => 'Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent',
		'court' => 'Andhra Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2001-07-10',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'P.S. Narayana, J.',
		'judgement' => 'ORDER<p>P.S. Narayana, J.</p><p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.</p><p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.</p><p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.</p><p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:</p><p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'</p><p>Aggrieved by the said order the third party objector had filed the present revision.</p><p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:</p><p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:</p><p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.</p><p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'</p><p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.</p><p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:</p><p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'</p><p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:</p><p>'Order 21 Rule 35: (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.</p><p>(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.</p><p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.</p><p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.</p><p>(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.'</p><p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.</p><p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:</p><p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:</p><p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'</p><p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:</p><p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.</p><p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'</p><p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.</p><p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:</p><p>'102: 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.</p><p>Explanation: In this rule transfer includes a transfer by operation of law.'</p><p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>P.S. Narayana, J.',
	(int) 1 => '<p>1. This Civil Revision Petition is directed against an order dated 22-8-1990 made in E.A.No. 18 of 1990 in O.S.No. 50 of 1974 on the file of the Principal District Munsif, Razole.',
	(int) 2 => '<p>2. The facts of the case in brief are as follows: While taking execution for delivery of possession of the petition schedule property, delivery warrant was issued and however the delivery could not be effected since there was some obstruction and application for taking steps had been filed and it was ordered that the property should be delivered on 17-4-1990 and on that day the delivery warrant was returned unexecuted stating that one K. Pullaiah and his family members had obstructed the delivery on the ground that they had purchased these properties by virtue of a registered sale deed dated 14-5-1981 from the judgment debtors, the respondents 2 and 3 in the present revision. The third party objector who is the present revision petitioner also had filed a memo stating that he is not a party to the proceedings and by virtue of the sale deed he had acquired independent title to the property and hence notice should be ordered and the matter has to be proceeded with in accordance with Order 21 Rules 97 to 101 C.P.C.',
	(int) 3 => '<p>3. The brief history of the case appears to be that an ex parte decree was passed in O.S.No. 85 of 1964 and the property was delivered to the decree holder and the order was set aside and the suit was renumbered as O.S.No. 50 of 1974. In the year 1983 or so the suit was dismissed for default and a restitution petition was filed in L.A.No. 135 of 1986 in O.S.No. 50 of 1974 and the same was allowed on 28-3-1989. The respondents 2 and 3 herein were directed to put the first respondent in possession of the property and when the delivery warrant was issued the present revision petitioner third party objector had filed the objection memo.',
	(int) 4 => '<p>4. The learned Principal District Munsif, Razole after elaborately discussing the contentions advanced by both the parties ultimately had rejected a memo observing as follows:',
	(int) 5 => '<p>'The third party filed memo on 16-4-1990. Thereafter number of adjournments were granted to him. If we treated this memo as an application under Order 21 Rule 97 or Rule 98 or Rule 99 or Rule 101 C.P.C. or the counter in the said petition the person who filed this memo has not even filed the alleged sale deed to show his bona fides. Ample opportunity was given to him. Nevertheless he preferred to submit his case on the strength of that memo only. Such a procedure is not contemplated under the C.P.C. If such memos are allowed to be filed and enquiry is conducted some other fellow may again file a similar memo and say that he purchased the property. There will be no end for this type of litigation. This third party simply filed a memo and says that he is a bona fide purchaser and no execution can be taken against him. People will lose confidence in administration of justice if this ' procedure is adhered to. Even though he filed a memo not less than 10 adjournments were given. He has not even filed the alleged sale deed as per his own memo, when he purchased the property the matter is still pending as per the suit records, the matter was finally disposed of on 24-8-1983. If we treat this memo as a petition counter no evidence is before this Court. The facts noted in : AIR1987AP206 are entirely different from the facts on hand.'',
	(int) 6 => '<p>Aggrieved by the said order the third party objector had filed the present revision.',
	(int) 7 => '<p>5. Sri Bhanoji Ramars, learned Counsel appearing for the petitioner contends that the petitioner third party is a bona fide purchaser having independent right and title and when an objection is raised by such third party the Court is bound to follow the procedure under Order 21 Rules 97 to 101 C.P.C. and is bound to conduct an enquiry as contemplated by law. The learned Counsel for the petitioner also had drawn my attention to Smt. Zahera Sayeed v. M. Shanmugam, : AIR1987AP206 wherein at page 210 it was observed as follows:',
	(int) 8 => '<p>'The delivery of possession under Rule 35 of Order 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under Sub-rule (1) or symbolic possession under Sub-rule (2) like tenants etc., or specific removal of the persons named therein for obstruction under Sub-rule (3). In Usha Jain's case (supra) J.S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, if it open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under Rule 97 of Order 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit, Jagannadha Das C.J. (as he then was) speaking for the Full bench held that the decree holder or purchaser cannot be compelled to have recourse to Rule 97 of Order 21. All these cases are anterior to 1976 Amendment Act and enquiry under Order 21 is summary and it is; subject to right of suit. Now, by Section 72 of the Amendment Act the right to suit is taken away and enquiry under Order 21 Rule 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the A.P. Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under Rule 97 of Order 21 does not arise. In Murugappa v. Emperor AIR 1925 Mad. 613 obstruction was by a person in possession who is not bound by the decree but when was sought to be evicted by a Warrant under Order 21 Rule 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of Section 186 Penal Code. In Abdul Sattar v. Moti Bibi AIR 1930 Cal. 720 when the third party I possession resistance for execution of the decree under Order 21 Rule 35 the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under Section 323 IPC. In Abdul Aziz v. Chokkan AIR 1935 Mad. 803 Ramesam, J. speaking for the Full Bench to which I am bound by, held:',
	(int) 9 => '<p>'Where the decreeholder purchaser seeks delivery of possession of immovable property and the judgment-debtor obstructs the decreeholder should make a complaint under Order 21 Rule 97 C.P.C. and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decreeholder purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under Order 21 Rule 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment debtor (is concerned).'I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immovable property, the subject of execution under Rule 35 of Order 21. In M. Ramaiah v. K. Mallaiah, : AIR1962AP72 when a third party filed an application under Order 21 Rule 97 and counter was filed by the decreeholder objecting to the enquiry it was held that the counter of the decreeholder could be treated as an application under Order 21 Rule 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (F.B.) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a complaint within the meaning of Order 21 Rule 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, treated the resistance as an application. The ratio in Ramaiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad. 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders : AIR1977Delhi45 Sikkim I relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K.A. Prabhakaran v. Kuttian Prakashan 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker.L.T. 901 to Prabhakaran's case that an unwilling decreeholder cannot be compelled to file an application under Order 21 Rule 97 C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (F.B.) or Prabhakaran's case.',
	(int) 10 => '<p>Though Rule 99 of Order 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorthy (1985(1) ALT 436) I held that the faith of the people is the saviour and succor for the sustenance of the rule of law and any weakening link in this regard would rip apart the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole. Considered from this perspective, I have no hesitation to hold that when the third party, not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21 Rule 97, it must be treated to be an intimation to the Court as caveat to the decreeholder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21 Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with Ubi jus ebi remidium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly, I hold that the application under Order 21 Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21 Rule 97 and it is maintainable.'',
	(int) 11 => '<p>Placing strong reliance on this decision it is contended that since the third party objector is a person claiming title to the property by virtue of a registered sale deed and when a memo is filed objecting to the delivery the Court is bound to conduct an enquiry in accordance with law and rejection of memo by the Court below is totally unsustainable.',
	(int) 12 => '<p>6. Ms. Rama, representing Sri V.L.N.G.K. Murthy, learned Counsel for the first respondent on the contrary had contended that it cannot be said that the revision petitioner is a bona fide purchaser having independent right and title to the property since the third party purchased the property on 14-5-1981 during the pendency of the litigation and hence the transaction is hit by the doctrine of lis pendens and the learned Counsel further contended that when there is such an obstruction steps can be taken even in accordance with Section 74 C.P.C. Here itself it may be relevant to deal with the relevant provisions for better appreciation of the case. Section 74 C.P.C. reads as under:',
	(int) 13 => '<p>'Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause the Court may at the instance of the decreeholder or purchaser order the judgment-debtor or such other person to be detained in civil prison for a term which may extend to thirty days and may further direct that the decreeholder or purchaser be put into possession of the property.'',
	(int) 14 => '<p>The other relevant provisions which may also be looked into are Order 21 Rule 35 and Order 21 Rule 97 C.P.C. which read a sunder:',
	(int) 15 => '<p>'Order 21 Rule 35: (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.',
	(int) 16 => '<p>(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.',
	(int) 17 => '<p>(3) Where possession of any building or enclosures 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 custom 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 decreeholder in possession.',
	(int) 18 => '<p>Order 21 Rule 97 C.P.C.:-- (1) Where the holder of a decree for 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.',
	(int) 19 => '<p>(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.'',
	(int) 20 => '<p>The learned Counsel had further contended that for resisting decree the third party objector should have an independent right and in view of Section 52 of the Transfer of Property Act since the transaction is hit by the doctrine of lis pendens it cannot be said that the third party objector is having an independent right to the property. Further it was contended that the practice of filing such a memo has to be deprecated.',
	(int) 21 => '<p>7. After hearing the submissions of both the parties I am of the opinion that the objection memo filed by the revision petitioner is not sustainable in law and the Court below had rightly rejected the same. In Sreenath v. Rajesh, : [1998]2SCR709 the Apex Court had observed as follows:',
	(int) 22 => '<p>'In Noorduddin v. Dr. K.L. Anand, : (1995)1SCC242 it is held:',
	(int) 23 => '<p>Para 8: Thus the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decreeholder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that proceeding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21 Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the Legislature relegated the parties to an adjudication of right, 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.In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswl : [1997]1SCR463 the question raised was whether a stranger occupying the premises on his own right when offered resistance to the execution of the decree obtained by the decreeholder can or cannot request the executing Court to adjudicate his claim without being insisted upon the first he must hand over the possession and then move an application under Order 21 Rule 97. It is held in para 9:--In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decreeholder 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 decreeholder the remedy available to the decree holder against such an obstructionist is only under Order 21 Rule 97 Sub-rule (1) and he cannot by pass such obstruction and insist on resistance of warrant for possession under Order 21 Rule 35 with the help of police force, as the course would amount to by passing and circumventing the procedure laid down under Order 21 Rule 97....'',
	(int) 24 => '<p>Thus, a person resisting delivery to invoke Order 21 Rule 97 C.P.C. should be a person having an independent right and title to the property and not a person claiming through the parties to the litigation by virtue of transaction which came into existence pending litigation. Section 52 of the Transfer of Property Act reads as follows:',
	(int) 25 => '<p>'52. Transfer of property pending suit relating thereto: During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may imposed.',
	(int) 26 => '<p>Explanation: For the purpose of this section pendency of suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the restoration of any period of limitation prescribed for the execution thereof by any law for the time being in force.'',
	(int) 27 => '<p>8. In Kemchand Sankar Chowdary v. Vishnu Hari, AIR 1983 SC 121 it was observed that Section 52 of the Transfer of Property Act no doubt lays down that a transferee pendente lite of an interest in immovable property will be bound in so far as that interest is concerned by the proceedings in the suit.',
	(int) 28 => '<p>9. In Ghulam Nabi Chapwala v. F.W. Nudham, AIR 1925 Cal. 1243 it was held that a purchaser pendente lite is a person who is bound by the decree and therefore comes within the definition of judgment-debtor as mentioned in Rule 98 of Order 21 C.P.C. Ms. Rama continued her elaborate submission and had drawn my attention to Order 21 Rule 102 C.P.C. which reads as follows:',
	(int) 29 => '<p>'102: 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.',
	(int) 30 => '<p>Explanation: In this rule transfer includes a transfer by operation of law.'',
	(int) 31 => '<p>10. Thus, in view of the above legal position the rejection of objection memo by the Court below is in accordance with law and hence the civil revision petition is devoid of merits and accordingly it is dismissed with costs.<p>',
	(int) 32 => '<p>'
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Subject	Civil;Property
Court	Andhra Pradesh High Court
Decided On	Jul-10-2001
Case Number	C.R.P. No. 2662 of 1990
Judge	P.S. Narayana, J.
Reported in	2001(5)ALT8
Acts	Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 72; Transfer of Property Act - Sections 52; Code of Civil Procedure (CPC) , 1908 - Sections 74 - Order 21, Rules 35, 97 to 101, 102, 103 and 104; Indian Penal Code (IPC) - Sections 186 and 323; Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Rules
Appellant	Kadali Pullayya
Respondent	Kadali Narasanna and ors.
Appellant Advocate	Bhanoji and ;Dhananjaya, Advs.
Respondent Advocate	Rama, Adv. for ;V.L.N.G.K. Murthy, Adv. for 1st Respondent
Disposition	Petition dismissed

Kadali Pullayya Vs. Kadali Narasanna and ors. - Court Judgment