S. Tamilvanan, J.@mdashHeard both the learned Counsel appearing for the Petitioner as well as the First Respondent. In spite of service of
notice, there was No. representation for the Second Respondent and the Second Respondent is also called absent continuously.
2. This Civil Revision has been preferred, challenging the order, dated 04.09.2010 made in R.E.A. No. 146 of 2010 in R.E.A. No. 78 of 2010 in
R.E.P. No. 319 of 2006 in O.S. No. 4 of 1999 on the file of the Subordinate Judge, Dharmapuri.
3. The Petitioner herein, who was arrayed as obstructer in R.E.A. No. 78 of 2010 filed the subsequent Execution Application in R.E.A. No. 146
of 2010, seeking an order for simultaneous trial of the Suit in O.S. No. 35 of 2010 and the enquiry in R.E.A. No. 78 of 2010. It is an admitted
fact that the aforesaid Suit and the Execution Petition are pending before the Sub-Court, Dharmapuri, relating to very same property.
4. Learned Counsel appearing for the Petitioner submitted that the Second Respondent, being the owner of the schedule mentioned property had
entered into a registered Sale Agreement, dated 23.10.1996, having received the entire sale consideration, handed over the possession of the
property to the Revision Petitioner. However, she entered into an Agreement of Sale subsequently with the First Respondent and the First
Respondent filed the Suit in O.S. No. 4 of 1999 on the file of the Sub-Court, Dharmapuri, without imp leading the Petitioner herein, as a necessary
party, obtained a decree for specific performance of the contract and also filed R.E.P. No. 319 of 2006, pursuant to the decree obtained by him.
Immediately, after knowing the fact about the decree obtained by the Second Respondent in respect of the property, the Petitioner herein filed a
Petition under Order 21, Rule 97, CPC as obstructer, wherein the Petitioner has stated that he was put in possession by the Second Respondent
as owner of the property, pursuant to the registered Sale Agreement, after having received the entire sale consideration. According to the learned
Counsel, No. date or time limit was fixed for the execution of the Sale Deed, only after knowing about the decree obtained by the First
Respondent against the Second Respondent, the Petitioner filed a Suit in O.S. No. 35 of 2010 against the Respondents 1 and 2, seeking specific
relief of the contract.
5. Learned Counsel for the Petitioner further contended that only in the Suit, he can establish his right to the property, as the Petitioner is in legal
possession and enjoyment of the property, pursuant to the decree obtained by the First Respondent, the Petitioner cannot be dispossessed by any
order being passed in R.E.P. No. 319 of 2006. In both the Suit in O.S. No. 35 of 2010 and in the Execution Application in R.E.A. No. 78 of
2010, the Petitioner has to establish the execution of the Sale Agreement between the Petitioner and the Second Respondent and also the legality
of the said document and the alleged right claimed by the Petitioner.
6. In the aforesaid circumstances, according to the learned Counsel for Petitioner, to meet the ends of justice, simultaneous trial in O.S. No. 35 of
2010 and enquiry in the Execution Application are needed.
7. Per contra, learned Counsel appearing for the First Respondent submitted that the First Respondent is a bona fide purchaser and he had
obtained Encumbrance Certificate prior to the agreement entered into with the Second Respondent and further contended that if there is
simultaneous trial, it may cause delay in taking over possession of the property, pursuant to the decree obtained by the First Respondent.
8. The following decisions were relied on by both the learned Counsel, in order to enlighten the legal aspect:
1. Chitivalasa Jute Mills Vs. Jaypee Rewa Cement, ;
2 N.S.S. Narayana Sarma and Others Vs. Goldstone Exports (P) Ltd. and Others, .
9. In N.S.S. Narayana Sarma and Others Vs. Goldstone Exports (P) Ltd. and Others, , the Hon''ble Apex Court has held as follows:
19. From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his
possession obstructing the attempt by the decree-holder to dispossess him from the said property the Executing Court is competent to consider all
questions raised by the persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of
Order 21, Rule 103 is to be treated as a decree. From the averments made in the Petition filed by the Appellants before the Executing Court it is
clear that they are claiming independent right to the property from which they are sought to be evicted in execution of the decree. It is further case
of the Appellants that they right in the property had vested in them much prior to filing of the present Suit the decree of which is under execution...
10. The Petitioner herein has filed E.A. No. 78 of 2010 under Order 21, Rule 97, CPC It is seen that Order 21, Rule 97, CPC reads as follows:
Resistance or obstruction to possession of immovable property.
(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is
resisted or obstructed by any person in obtaining possession of the property, he may take an Application to the Court complaining of such
resistance or obstruction.
(2) Where any Application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the
provisions herein contained.
11. As per Order 21, Rule 101, Code of Civil Procedure, it is made clear that all questions (including questions relating to right, title or interest in
the property) arising between the parties to a proceeding on an Application under Order 21, Rule 97 or Rule 99 or their representatives, relevant
to the adjudication of the Application, shall be determined by the Court dealing with the Application and not by a separate Suit and for this
purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have
jurisdiction to decide such questions.
12. It is not in dispute that the order, being passed under Order 21, Rule 97, CPC is an appealable order and therefore, the Executing Court
cannot pass any order, summarily without providing reasonable opportunity to both the parties.
13. In the instant case, the obstructer is not claiming any right as judgment-debtor or as legal heir or successor to the judgment-debtor, the Second
Respondent. Like the First Respondent herein, the Petitioner had also entered into a Sale Agreement, as contended by the learned Counsel
appearing for the Petitioner and that is also a registered Sale Agreement entered into on 23.10.1996 and the entire sale consideration was said to
be paid and possession was also handed over to the Petitioner. According to the learned Counsel appearing for the Petitioner, the Second
Respondent entered into the Sale Agreement, dated 09.12.1997 with the First Respondent subsequently against the earlier agreement. However,
pursuant to the same, the First Respondent filed a Suit in O.S. No. 4 of 1999, wherein, the Revision Petitioner was not arrayed as party to the
Suit. Therefore, the aforesaid judgment is not binding on him and his claim is against both the Respondents in the Suit in O.S. No. 35 of 2010. In
such circumstances, there is No. bar in maintaining the suit by the Petitioner herein under Order 21, Rule 97, Code of Civil Procedure
14. In the aforesaid circumstances, according to the learned Counsel appearing for the Petitioner, to meet the ends of justice, simultaneous trial of
the Execution Application filed under Order 21, Rule 97, CPC and suit filed by the obstructer in O.S. No. 35 of 2010 are needed. In support of
his contention, the learned Counsel relied on the decision, Chitivalasa Jute Mills Vs. Jaypee Rewa Cement, , wherein the Hon''ble Supreme Court
has held as follows:
10. Willard India rightly raised a plea u/s 10, CPC and it ought to have been allowed. However, the Court at Rewa erroneously proceeded on an
assumption that there was No. identity of parties. The error could have been corrected in revision by the High Court but unfortunately, the Revision
was barred by time and the High Court was not inclined to condone the delay in preferring the Revision. Merely because the plea u/s 10, CPC has
been rejected, this Court is not denuded of the exercise of its power to transfer the suit if the ends of justice call for the exercise of such power.
11. The Transfer Petition is allowed. The Suit at Rewa is directed to be transferred for hearing and decision in accordance with law to
Visakhapatnam before the same Court which is seized of hearing in the Suit filed by Willard India, i.e., the Court of 1st Additional Subordinate
Judge at Visakhapatnam.
12. The two Suits ought not to be tried separately. Once the Suit at Rewa has reached the Court at Visakhapatnam, the two Suits shall be
consolidated for the purpose of trial and decision. The Trial Court may frame consolidated issues. The CPC does not specifically speak of
consolidation of Suits but the same can be done under the inherent powers of the Court flowing from Section 151, CPC Unless specifically
prohibited, the Civil Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process
of the Court. Consolidation of Suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and
expenses. Complete or even substantial and sufficient similarity of the issues arising for decision in two Suits enables the two Suits being
consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over
in the two Suits at two different trials. The evidence having been recorded, common arguments need to be addressed followed by one common
judgment. However, as the Suits are two, the Court may, based on the common judgment, draw two different decrees or one common decree to
be placed on the record of the two Suits. This is how the Trial Court at Visakhapatnam shall proceed consequent upon this order of transfer of
Suit from Rewa to the Court at Visakhapatnam.
It is a well settled proposition of law that when the issues involved or the points for determination are the same and the parties to the ''lies'' are the
same or identically similar in the Suits, it is needed that the two Suits being consolidated for trial and for proper decision, simultaneous trial would
be needed. It is not in dispute that in the Execution Application, order has to be passed, whereas in the Suit, Judgment and Decree are to be
passed, however, the decision in both the matters should not be a conflicting view by the Court below.
15. Learned Counsel appearing for the Petitioner contended that though the order to be passed by the Executing Court under Order 21, Rule 97,
CPC is an appealable order, the Petitioner could establish his right only in the Suit filed by him for the relief of specific performance, as the Second
Respondent had already entered into an agreement with the Petitioner and also handed over the possession of the property to the Petitioner and till
such time, he is entitled to legal protection. Pursuant to the decree obtained by the First Respondent against the Second Respondent, without imp
leading the Petitioner, who is the earlier agreement holder, if the Petitioner is dispossessed, that would prejudice his right and the learned Counsel
submitted that in both the R.E.A. and the Suit, the decidable issues are one and the same.
16. Learned Counsel appearing for the First Respondent submitted that the possession is not with the Revision Petitioner and it is only with the
Second Respondent. However, according to the learned Counsel appearing for the Petitioner, even as per the registered Agreement for Sale
between the Petitioner and the Second Respondent, dated 23.10.1996, there is a clear averment that the possession was handed over to the
Petitioner herein. However, the factum of possession of the property has to be decided, based on the evidence, which cannot be decided by this
Court in this Revision.
17. According to the learned Counsel appearing for the Petitioner, as per the earlier agreement with the Petitioner, the Second Respondent, who
owned the property has averred that the possession was handed over to the Petitioner, on the date of agreement, after receiving the entire sale
consideration.
18. On the aforesaid circumstances, I am of the view that the core issued to be decided both in the Execution Application in R.E.A. No. 78 of
2010 and the Suit in O.S. No. 35 of 2010 are similar. When there is subsisting right available, as per the materials available on record, substantial
justice must be rendered by providing reasonable opportunity to both the parties, otherwise it would prejudice the rights of one of the parties to the
litigation.
19. On the aforesaid facts and circumstances, in the light of the decision rendered by the Hon''ble Supreme Court reported in Chitivalasa Jute Mills
Vs. Jaypee Rewa Cement, , I find it just and reasonable to allow this Revision and direct the Court below for simultaneous trial of the Execution
Application and the Suit. However, considering the representation made by the learned Counsel appearing for the First Respondent, in order to
avoid delay, it is needed to fix a time limit for the disposal of the matter.
In the result, this Civil Revision Petition is allowed and the impugned order passed by the Court below is set aside. The Court below is directed to
dispose the R.E.A. No. 78 of 2010 and the Suit in O.S. No. 35 of 2010 simultaneously and dispose the same on or before 29.07.2011, solely on
merits, uninfluenced by the findings of this Court, if any. Consequently, connected Miscellaneous Petition is closed. However, there is No. order as
to costs.
