ORDER K. Sadasivan, J. The obstructor is the revision petitioner. The suit which resulted in the decree was one for recovery of possession of one item of property with residential building thereon. The property belonged in jenmom to Chovvakkaran Puthiypurayil Tharwad of the plaintiff. In 1949 the karnavan of the tarwad one Mamali Keyi granted lease of the property to one Sulaiman. The succeeding karnavan granted a kuzhikanam to the said Sulaiman under Ext. A-23 dated 31st October 1969. Sulaiman by Ext. B-6 registered assignment deed, transferred the leasehold rights to Kalathil Chathukutty, the father of the revision petitioner. Chathukutty was in possession and was residing in the property till his death in 1958. A suit O.S. 361/55 was filed in the Munsiff Court, Kozhikode-I against Chathukutty for recovery of the property. Chathukutty was the 4th defendant in the suit. That suit was later transferred to Munsiff Court, Kozhikode-II and was re-numbered as O.S. 307/61. On the death of Chathukutty, his children excepting the revision petitioner were impleaded in the suit. Chathukutty by means of a Will had bequeathed all his interests in the property to the revision petitioner and as such he was the only person who was entitled to succeed Chathukutty so far as his interests in the property were concerned. The decree was put in execution and when the Amin came to the property to effect delivery, the revision petitioner obstructed. He offered resistence on the ground that he was the exclusive heir entitled to succeed to the property. The Amin visited the property on 23rd September 1969 and in view of the obstruction, he filed a report in the court on 24th September 1969 stating that when he went to the property to effect delivery he found the revision petitioner residing in the house and he had offered resistence on the strength of a Will executed by Chathukutty which was shown to him. The same day the decree-holder filed his application under Order 21, rule 97 complaining of the resistence and praying for effecting delivery to him with police help. The same day the court passed orders allowing the decree-holder's application. The order reads: "I am satisfied that the present obstructor who claims to be the sole heir of deceased 4th defendant in the suit under an alleged unregistered will has been set up only by defendants 5 to 9 who were impleaded as L. Rs. The same day the court passed orders allowing the decree-holder's application. The order reads: "I am satisfied that the present obstructor who claims to be the sole heir of deceased 4th defendant in the suit under an alleged unregistered will has been set up only by defendants 5 to 9 who were impleaded as L. Rs. of the 4th defendant. If that be not so, certainly one would have expected the said defendants to have contended in the suit in which they had been impleaded as L. Rs. as early as 1954, that they are not the legal representatives. I am also further satisfied that this is a frantic last-minute-attempt to somehow cling on to the property and delay the realisation of the fruits of the decree. Address police to render necessary aid to the Amin to effect delivery. " Learned counsel appearing for the revision petitioner points out that the order is unsustainable on the short ground that the learned Munsiff has not complied with the mandatory provisions of Order 21, rule 97 (2) wherein it is provided that on receipt of an application under Order 21, rule 97 the Court should fix a day for investigating the matter fend summon the party against whom the application is made, to appear and answer the same." It is a mandatory provision and has to be complied with before final orders are passed on the application; but in the present case without even ordering notice to the obstructor, orders were passed on the same day of the filing of the application. The respondent's answer is that no notice was necessary since the obstructor's interests were represented by the other heirs of Chathukutty who had duly been impleaded in the suit. In other words, the argument is that the obstructor is also bound by the decree. In support of the position, Delai Malike v. Krushna Chandra Patnai A.I.R. 1967 S.C. 49 and Mohd. Sulaiman Sahib v. Mohd. Ismail Sahib 1966 S.C.W.R.133 were cited. The former is a case where, on the death of one of the appellants his heirs applied of bringing themselves on record as his legal representatives and one of the heirs was omitted to be impleaded. The court allowed it saying that in the absence of fraud or collusion the omission need not be taken serious note of. The former is a case where, on the death of one of the appellants his heirs applied of bringing themselves on record as his legal representatives and one of the heirs was omitted to be impleaded. The court allowed it saying that in the absence of fraud or collusion the omission need not be taken serious note of. The court observed : "This is not to say that where the heirs of an appellant are to be brought on record all of them should not be brought on record and any of them should be deliberately left out. But if by oversight or on account of some doubt as to who are the heirs, any heir of a deceased is of would be no reason for holding that estate of the deceased is not represented unless circumstances like fraud or collusion exist." That is not the position here. The fact is not disputed that the present obstructor is one of the heirs the deceased and the fact also cannot be disputed that he is the sole heir being the legatee under the Will. The decree-holder has no case that this person was out of view for a number of years, and could not be got at. As a matter of fact, he was a medical student at the time and there was absolutely no difficulty in getting at him. The omission to implead him cannot in the circumstances be condoned. In the case second cited, viz., 1966 1 S.C.W.R. 33.1, it was held: "Ordinarily the court does not regard a decree binding upon a person who was not impleaded 'eo nomine' in the action but to that rule there are certain recognised exceptions; where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased. There is yet another exception which is evolved in the larger interests of the administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir the decree in an action where the plaintiff has after bona-fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all person interested in the estate. The court will undoubtedly investigate if invited whether the decree was obtained by fraud, collusion or other means intended to over-reach the court. The court will undoubtedly investigate if invited whether the decree was obtained by fraud, collusion or other means intended to over-reach the court. The court will also enquire whether there was a real contest in, the suit and may for that purpose ascertain whether there was any special defence which the absent defendant would put forward but which was not put forward. Where however on account of a bona-fide error the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially in the absence of fraud or collusion or other grounds which taints the decree, a decree passed against the person impleaded as heirs binds the estate even enough other person interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion." This also does not apply to the present case since other heirs could not have properly represented the interests of the obstructor here, and they could not have even taken any genuine interest as they had already been divested of their rights in the property by means of the Will. The only person interested in the property was the obstructor and none else. Learned counsel also relied on Order 21, rule 35 and stated that where the decree is for delivery of immovable property possession thereof shall be delivered to the party in whose favour it has been adjudged, by removing any person bound by the decree who refuses to vacate the property. This rule proceeds on the assumption that the person who claims to be in possession is one bound by the decree. But we have seen that it is not so. The obstructor is not bound by the decree since he is not a party to the decree. Even if the application is construed as one falling under Order 21, rule 35 the court cannot divest itself of its duty to issue notice to the obstructor. "Where delivery of possession of property ordered under Order 21, rule 35, Civil P.C. has been obstructed and a dispute arises as to whether the person causing obstruction is a sub-tenant of the judgment-debtor or not the execution court cannot determine the question under Order 21, rule 35. "Where delivery of possession of property ordered under Order 21, rule 35, Civil P.C. has been obstructed and a dispute arises as to whether the person causing obstruction is a sub-tenant of the judgment-debtor or not the execution court cannot determine the question under Order 21, rule 35. The proper investigation can only be made under Order 21, rule 97 Civil P.C. (vide A.I.R. 1962 Assam 150). So, in any event the court was bound to investigate into the matter and adjudge the question judicially. The court having not done that, the order is unsustainable. I would therefore, set aside the order and remand the case to the court below for a proper enquiry being conducted and disposal according to law.