Ramgulam Choubey v. Mahendra Kumar — 1970 DIGILAW 7 (MP)

ORDER Singh, J. 1. The facts giving rise to this revision are that in Civil Suit No.6-A of 1965, decided by 2nd Civil Judge Class II, Khurai on 15th December, 1966, the petitioners obtained against Mahendra Kumar, the respondent No. 1 to this petition a decree for possession of about 27 acres of lands situated in village Rithore of Tahsil Khurai. The decree-holders made an application for execution of the decree on 13th April, 1967. A warrant for delivery of possession under Order 21, Rule 35 of the Code of Civil Procedure was issued on 8th May, 1967 but was returned unexecuted as the Bailiff, according to his report, was obstructed and resisted by certain persons in executing the warrant. The execution application was eventually dismissed on 4th May, 1968. Thereafter, two more execution applications were filed, which were also dismissed; the last of them was dismissed on 30th November, 1968. The record before me does not give any clear idea as to what happened in these execution applications. It, however, appears that the execution of warrant for delivery of possession was also resisted in the third execution case. The decree-holders then on 22nd April, 1969 filed the fourth execution application, which has given rise to this revision, in which they prayed for issue of warrant for delivery of possession. In a separate application filed on the same date the decree-holders requested for police help in execution of the warrant, on the ground that on previous two occasions the judgment-debtor had collected a number of persons to obstruct the delivery of possession. On 3rd May, 1969 the respondent No. 1 applied under section 151 of the Code, not as judgment-debtor but as Mohatmimkar of Shri Deo Hanumanji Trust, stating that the lands covered by the decree were not in possession of the judgment-debtor but were in possession of the temple and praying that no warrant for delivery of possession should be issued. This application was objected to by the decree-holders and was rejected on 8th May, 1969 on the ground that in view of specific provisions in Order 21, no such application was maintainable under section 151 of the Code. On 10th May, 1969 the Court rejected the prayer of the decree-holders for police help on the view that it was not necessary at that stage. On 10th May, 1969 the Court rejected the prayer of the decree-holders for police help on the view that it was not necessary at that stage. On that very date the Court ordered issue of notice of the execution application to the judgment-debtor presumably under Order 21, Rule 22 of the Code of Civil Procedure. Then on 20th June, 1969 the respondent No. 1 applied under Order 21, Rule 36 on behalf of Shri Deo Hanumanji Temple alleging that the lands covered by the decree were not in possession of the judgment-debtor but they belonged to and were in possession of this Temple and praying that as there was no decree against the Temple, the decree-holders should not be delivered possession of the lands. In reply to this application, which was registered as Miscellaneous Judicial Case No. 26 of 1969, the decree-holders denied the allegations that the judgment-debtor was not in possession of the lands and that the lands belonged to and were in possession of the Temple. The decree-holders also took the plea that such an application on behalf of the Temple was not maintainable at that stage. The Court then framed a preliminary issue whether the application on behalf of the Temple was maintainable. This preliminary issue was decided on 8th September, 1969 in favour of the Temple, the Court holding that the application was maintainable for determining the nature of possession to be given to the decree-holders. It is against this order that the decree-holders have come up in revision. The temple has been impleaded as respondent No. 2 in the revision. 2. It is contended by the Learned Counsel for the petitioners that a third party who claims to have independent title and possession which is not accepted by the decree-holders cannot object in execution-proceedings until he is dispossessed and for this reason the Court below acted in excess of its jurisdiction in entertaining the application made on behalf of the Temple. It is contended by the Learned Counsel for the petitioners that a third party who claims to have independent title and possession which is not accepted by the decree-holders cannot object in execution-proceedings until he is dispossessed and for this reason the Court below acted in excess of its jurisdiction in entertaining the application made on behalf of the Temple. In answer, it is argued by the Learned Counsel for the respondents that the rules 35 and 36 of Order 21 of the Code of Civil Procedure contemplate an inquiry before issue of warrant for delivery of possession and a third party objector can apply under these rules alleging his independent title and possession and contending that he is a person not bound by the decree notwithstanding the fact that his title and possession are not admitted by the decree-holder. 3. To appreciate the rival contentions, it is necessary to consider the relevant provisions of the Code in Order 21. A person who has obtained a decree for possession and who has not been put into possession by the judgment-debtor outside the Court in obedience to the decree has to decide what type of assistance he wants from the Court consistent with the decree for obtaining possession. Under rules 35 and 36 the Court's assistance is available by issue of a warrant for delivery of actual possession, joint possession or symbolical possession. Form of warrant for delivery of possession finds place in Form No. 11 of Appendix E, It is noteworthy that this warrant in general terms directs the bailiff to put the decree-holder in possession of the property and to remove any person bound by the decree who may refuse to vacate the same. The language of the form, which is in line with first clause of rule 35, indicates that the warrant issued under this provision is not issued to remove any particular individual from possession, but is issued in general term to remove any person bound by the decree. It follows that the words--"if necessary by removing any person bound by the decree who refuses to vacate the property"--which find place in clause 1 of rule 35 do not contemplate any inquiry for finding out as to who is the particular person in possession or whether he is bound by the decree or refusing to vacate the property. It follows that the words--"if necessary by removing any person bound by the decree who refuses to vacate the property"--which find place in clause 1 of rule 35 do not contemplate any inquiry for finding out as to who is the particular person in possession or whether he is bound by the decree or refusing to vacate the property. The provision for issue of a warrant in general terms negatives any occasion of any such inquiry. The third clause of rule 35, which also deals with delivery of actual possession, enables the Court to direct the removal or opening of any lock or bolt or breaking open of any door or doing of any act of similar nature for putting the decree-holder in possession of any building or enclosure when the person in possession being bound by the decree does not afford free access. The words "where the person in possession being bound by the decree does not afford free access"--as used in this clause like the words--"by removing any person bound by the decree who refuses to vacate the property"--as used in the first clause do not require any inquiry to be made to find out as to who is the particular person in possession or whether he is bound by the decree or affording free access. The third clause interpreted along with the first clause only contemplates of a general direction to be inserted in the warrant authorising the bailiff to do the acts mentioned in that clause for putting the decree-holder in possession of any building or enclosure where the person in possession being bound by the decree does not afford free access. The second clause of rule 35 deals with the mode of delivery of possession when the decree being executed is one for joint possession. It only requires that a copy of warrant be affixed in some conspicuous place on the property and that the substance of the decree be proclaimed by beat of drum or other customary mode at some convenient place. There is hardly anything in this clause which may furnish the basis for any inquiry. It only requires that a copy of warrant be affixed in some conspicuous place on the property and that the substance of the decree be proclaimed by beat of drum or other customary mode at some convenient place. There is hardly anything in this clause which may furnish the basis for any inquiry. Rule 36 deals with the delivery of constructive possession where the property to which the decree relates is in "the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy." The delivery of possession under this rule is to be effected by affixing a copy of the warrant in some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree. The warrant contemplated by this clause is also of general nature authorising the bailiff to proclaim to "the occupant" whosoever he may be the substance of the decree. As already stated, a person who is armed with a decree for the delivery of possession in his favour has to decide for himself whether he wants the Court to issue a warrant for delivery of actual possession, joint possession or constructive possession and he is to make a request to that effect in his application for execution. If the request made by the decree-holder is inconsistent with the decree, the court will refuse the request and issue only such warrant which is consistent with the decree or may dismiss the application. For example, if a decree is plainly one for joint possession or symbolical possession, an application which seeks the issuance of a warrant for delivery of actual possession will not be granted. But when the decree to be executed is one for actual possession and the decree-holder chooses to apply for issuance of a warrant for delivery of actual possession, the Court is not required to hold an inquiry whether the person in occupation is one bound by the decree and the duty of the Court is to issue a warrant under rule 35. A third party, meaning thereby a person who is not the judgment-debtor or a reprensentative-in-interest of the judgment-debtor, has no locus standi at that stage to apply that the application of the decree-holder for actual delivery of possession should be dismissed or that he be granted only constructive possession. An application of the judgment-debtor or his representative-in-interest stating that the decree for any reason is not executable or is executable in a particular mode will stand on a different footing as it will fall under section 47 of the Code of Civil Procedure and will be decided under that provision. But a third party cannot intervene at that stage and force an inquiry into his title or possession on an unwilling decree-holder for the simple reason that his case does not fall under section 47 and no inquiry into his title or possession is contemplated under rules 35 and 36 at any rate at his instance. Similar is the position when an auction purchaser seeks the assistance of the Court for being put into possession under rules 95 and 96. These rules are worded in like manner as rules 35 and 36 and a third party cannot intervene to have his title or possession investigated under them. 4. After a warrant for delivery of possession is issued in favour of a decree-holder or an auction purchaser, he may be met with resistance or obstruction in obtaining possession and the warrant may be returned unexecuted. He will then have three courses open to him. He may accept that the person resisting or obstructing execution is a third party in possession who is not bound by the decree in which case he will have to institute a separate suit for possession within ordinary period of limitation for obtaining possession. He may proceed on the assumption that the resistance or obstruction is by the judgment debtor or a person bound by the decree in which case he has to apply under rule 97 for getting the title and nature of possession of the person obstructing or resisting investigated in execution proceedings. But he is not bound to apply under rule 97 and may ignore the obstruction or resistance and apply again for warrant of delivery of possession; see, Nathu Harishankar v. S. Fatusa 19 MPLC 426 : AIR 1933 Nag. 369; Ganpati Singh v. Ramgopal 27 MPLC 424: 1942 Nag. But he is not bound to apply under rule 97 and may ignore the obstruction or resistance and apply again for warrant of delivery of possession; see, Nathu Harishankar v. S. Fatusa 19 MPLC 426 : AIR 1933 Nag. 369; Ganpati Singh v. Ramgopal 27 MPLC 424: 1942 Nag. 633: AIR 1941 Nag. 322. and Official Trustee v. Monmothonath AIR 1953 Cal. 499 . It is also clear that if the decree-holder or the auction purchaser does not chore to apply under rule 97 neither the person obstructing or resisting execution nor a person who may in future obstruct or resist execution can apply under that rule to have his title and possession investigated; see, Jagannath v. Khaja Faisuddin 20 MPLC 473: 31 NLR 408: AIR 1935 Nag. 212 and Nanakchand v. Chaturbhuj 1964 JLJ SN 15. In case an application is made under rule 97 by the decree-holder or the auction purchaser complaining resistance or obstruction in obtaining possession, the Court is to fix a date for investigating the matter and summon the party against whom the application is made to appear and answer the same. As a result of investigation the Court may find that the resistance or obstruction was occasioned by the judgment-debtor (which expression has been construed to include all persons claiming under him and bound by the decree, see Mulla, Vol. 2 p. 1210) or by some person at his instance or on his behalf; in such a case the Court is empowered under rule 98 to direct the decree-holder or the auction purchaser, as the case may be, to be put into possession of the property and where he is still resisted or obstructed in obtaining possession to order that the judgment-debtor or any person acting at his instance or on his behalf be detained in civil prison for a term which may extend to thirty days. The result of investigation may also show that the resistance or obstruction was occasioned by any person claiming in good faith to be in possession on his own account or on account of some person other than the judgment-debtor and if this be the finding, the Court acting under rule 99 will dismiss the application made under rule 97. The result of investigation may also show that the resistance or obstruction was occasioned by any person claiming in good faith to be in possession on his own account or on account of some person other than the judgment-debtor and if this be the finding, the Court acting under rule 99 will dismiss the application made under rule 97. Thus the provisions contained in rules 97,98 and 99 authorise an inquiry into the nature and character of the possession of a person who has obstructed or resisted the delivery of possession; but as already stated, the inquiry under these rules can be made only on the complaint of the decree-holder or auction purchaser and not at the instance of the party in possession, An inquiry at the instance of a third party in possession is contemplated only after he is dispossessed in execution and applies under rule 100 complaining of such dispossession. If, as a result of the inquiry, it is found that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court is empowered Under rule 101 to direct that the applicant be put into possession. Just as a decree-holder or an auction purchaser who is resisted in obtaining possession by a third party in possession is not bound to apply under rule 97 but can proceed directly by a separate suit against such a party for obtaining possession, similarly a third party who is dispossessed in execution of a decree is not bound to apply under rule 100 and can directly proceed to recover possession by a separate suit against the decree-holder or the auction purchaser. A suit of this nature, which is filed without first taking recourse to rule 97 or 100, can be filed within the ordinary period of limitation. But if proceedings are taken under rule 97 or 100, any order passed under rules 98,99 or 101 attains finality subject to a suit that may be filed by the aggrieved party under section 103 within a period of one year; (see Article 11-A, Limitation Act, 1908 and Article 98, Limitation Act, 1963). 5. But if proceedings are taken under rule 97 or 100, any order passed under rules 98,99 or 101 attains finality subject to a suit that may be filed by the aggrieved party under section 103 within a period of one year; (see Article 11-A, Limitation Act, 1908 and Article 98, Limitation Act, 1963). 5. The scneme of rules 97 to 103 and the language used in rules 97 and 100 goes to show that the framers of the Code used express language providing for investigation into nature and character of the possession of a third party whenever such an investigation was intended to be permitted in execution proceedings. This consideration strengthens the view that I have already expressed on the language and the setting of rules 35 and 36, as also rules 95, and 96, that no inquiry into the nature and character of the possession of a third party is contemplated under these rules at any rate at his instance. Moreover, a conclusion that such an inquiry is contemplated within rules 35 and 36 or rules 95 and 96 will lead to certain anomalies. Supposing a third party applies under these rules and the Court on inquiry negatives his case, what will be the effect of this finding? Will the party be still in a position to resist delivery of possession and thereby compel the decree-holder or the auction purchaser to apply for a second investigation under rule 97 ? Will he be competent, if dispossessed in execution, to apply again under rule 100 regarding another investigation into his rights ? These questions cannot be satisfactorily answered for the simple reason that the rules 35 and 36 or rules 95 and 96 do not contemplate an inquiry into the rights of a third party in possession. Further, the scheme of the rules in Order 21 goes to show that the legislature intended to confer an "expeditious finality" to a finding reached as to the rights of a third party as a result of an investigation permitted in execution proceeding. For example, an order made under rules 60,61 and 62 on an investigation made under rule 58 is conclusive subject to a suit under rule 63 which is to be filed within one year from the date of the order. For example, an order made under rules 60,61 and 62 on an investigation made under rule 58 is conclusive subject to a suit under rule 63 which is to be filed within one year from the date of the order. Similarly, an order made under rules 98,99 or 101 on an investigation permitted under rule 97 or 100 is conclusive subject to a suit under rule 103, which also has to be filed within a period of one year from the date of the order; (see Articles 11 and 11-A, Limitation Act, 1908 and Article 98, Limitation Act, 1963;. Now, if the legislature intended to provide for investigation into the rights of a third party under rules 35 and 36 or rules 95 and 96, provision would have been made like rule 63 or 103 to give to an order passed as a result of the investigation an expeditious finality. Absence of a provision in that behalf leads to the inference that no investigation of any nature into rights of a third party is contemplated under rules 35 and 36 or rules 95 and 96. 6. The conclusion reached by me that no inquiry is contemplated under rules 35 and 36 or rules 95 and 96 into the rights of a third party is strongly supported by a Division Bench ruling of the Calcutta High Court, in the case of Kiranshashi Dasee v. Official Assignee of Calcutta ILR 60 Cal. 8. In that case it was held that no investigation as to rights of a third party in possession is contemplated under rules 95 and 96. In that connection, Rankin, C.J., with whom Costello, J., agreed, observed as follows. 8. In that case it was held that no investigation as to rights of a third party in possession is contemplated under rules 95 and 96. In that connection, Rankin, C.J., with whom Costello, J., agreed, observed as follows. - "It is only if he is prepared to say that the case is one within rule 95 or rule 96 that the certificate-holder or decree-holder has any business to approach the Court in that suit for execution of the decree and, when he does apply, it appears to me that the order be ought to get is an order of the character in form No. 39 in Appendix E of the Code--not an order directed against any particular person, but a general order directing the officer of the Court to put him into possession with a general direction to remove any person who refuses to vacate; or it will be purely a general order of the character specified in rule 96. Having in that way invoked the assistance of the Court to put him into possession, of two things one or the other will happen; either he will get possession or he will fail to get possession because of the resistance or obstruction of somebody and when that happens it appears to me that it is open to him to apply under rule 97. In that case, the Court will investigate the question of the character of the possession or the claim of right of the party objecting to the execution and will make an order under rule 98 or rule 99, the consequence of which will be that the order will be final, subject always to the bringing of a suit such as is contemplated by rule 103 of Order XXI." (p. 15). ** ** ** "The great difficulty is, in my judgment, this : Both the Court and the parties are apt to suppose that, in order to get a warrant under rule 95, the question of the character of the possession of the person likely to obstruct ought to be raised and decided. ** ** ** "The great difficulty is, in my judgment, this : Both the Court and the parties are apt to suppose that, in order to get a warrant under rule 95, the question of the character of the possession of the person likely to obstruct ought to be raised and decided. I am more particular in saying that that is not the intention of rule 95, because one of the Judges in the Allahabad case already mentioned seems to have taken that view and I see that, in 1919, in the present case, an order was made by me sitting on the Original Side purporting to be under rule 95 and purporting to direct Kiranshshi to vacate. That order was afterwards set aside. But it appears to me that the correct way of working these rales is this : First of all, to find out whether the applicant claims to be within rule 95 or rule 96. If he does not, dismiss his application then and there and leave him to bring a separate suit. If, on any reasonable right, he claims to be under rule 95 or rule 96, let him have a general warrant mentioning nothing about any particular person who is likely to give trouble; wait and see what particular person does give trouble when the officer of the Court comes to put the applicant into possession; and according to the claim of the person who thus gives trouble, an application may successfully be made under rule 97." (pp. 16,17). Similar is the opinion of a Full Bench of the Orissa High Court in the case of Nityananda v. Pala Devi AIR 1952 Ori 120 , p. 124. In holding that a third party objector cannot apply under rule 95 or 96 for investigation of his objection, Jagannadhadas, C.J., who delivered the judgment of the Full Bench, said : "The third-party-objector does not at all come into the picture at that stage and can have no right at the time to compel the decree-holder or the auction purchaser to submit to an investigation, into the title or possession." (p. 122). On a parity of reasoning the observations made in the Calcutta and Orissa cases mentioned above also apply to the construction of rules 35 and 36. 7. Notice must be taken of Sobharam v. Tursiram AIR 1924 All. On a parity of reasoning the observations made in the Calcutta and Orissa cases mentioned above also apply to the construction of rules 35 and 36. 7. Notice must be taken of Sobharam v. Tursiram AIR 1924 All. 495, where the majority of the Judges constituting a Full Bench were of the view that some inquiry can take place into the rights of a third party under rule 95. But in that case the inquiry took place at the instance of the decree-holder auction-purchaser, who in his application under rule 95 had impleaded as parties the prospective objectors. This Allahabad case, therefore, cannot be considered as an authority for the view that a third party objector can apply for inquiry under rule 95 when the auction-purchaser does not agree to that course and does not admit the objector's possession; (see, Nityananda v. Pala Devi AIR 1952 Ori 120 , p. 124. The opinion of the Allahabad High Court in Sobharam v. Tursiram (supra) that an auction-purchaser may invite an inquiry under rule 95 as to the nature and character of the possession of a prospective objector, was not accepted by the Calcutta High Court in Kiranshashi Dassee v. Official Assignee of Calcutta (supra). The Orissa High Court in Nityananda v. Pala Devi (supra) did not find it necessary to express any opinion on this matter as the inquiry in that case was not claimed by the auction-purchaser but by a third party objector. For the purpose of the instant case, where the inquiry is being claimed under rules 35 and 36 by a third party objector, whose possession is not admitted by the decree-holder, it is not necessary to decide finally whether an inquiry can be claimed at the instance of the decree-holder or when he admits the possession of the objector. But as at present advised, I am inclined to agree on this point with the Calcutta view in preference to the view taken by the Allahabad High Court. 8. The Learned Counsel for the respondent in support of his argument has placed strong reliance on the case of Amulya Chandra v. Haridas Basak AIR 1958 Tripura 11. This case does support the view that a third party can apply under rules 35 and 36 for some inquiry into the nature and character of his possession. 8. The Learned Counsel for the respondent in support of his argument has placed strong reliance on the case of Amulya Chandra v. Haridas Basak AIR 1958 Tripura 11. This case does support the view that a third party can apply under rules 35 and 36 for some inquiry into the nature and character of his possession. The learned Judicial Commissioner of Tripura in taking this view relied upon Sobharam v. Tursiram (supra). I have already explained that the Allahabad case does not support this view, for in that case inquiry was invited by the decree-holder himself. The Tripura case also does not notice the Calcutta and Orissa cases to which I have referred. For the reasons already explained, I respectfully dissent from the view taken by the learned Judicial Commissioner of Tripura. 9. The Learned Counsel for the respondent has also relied upon A.L.M, Chettiyar v. U Ti Ta AIR 1935 Rang. 159 and two unreported decisions of this Court viz., Dalchand Jain v. Anwarkhan Civil Revision No. 446 of 1959; decided on the 31st August 1960, decided by Dixit C.J., and Bhawanishanker v. Babulal Civil Revision No. 562 of 1968, decided on the 28th January 1969, decided by A.P. Sen, J. In A.L.M. Chettiyar v. U Ti Ta (supra) it was assumed without any discussion that an investigation can be made into the rights of a third party under rule 95. This case, therefore, is not of much assistance. In Dalchand v. Anwarkhan (supra) Dixit, C.J., held that a sub-tenant of a tenant, who was not impleaded as a defendant in the suit in which an ejectment decree was passed against the tenant, can apply under rule 36, for investigation into his claim that he is protected from ejectment under the Accommodation Control Act and the decree-holder is not entitled to actual possession. Reliance for this view was placed on a Calcutta case; Debendra Nath v. Parul Bala . AIR 1953 Cal. 233. In this case, a landlord was resisted in obtaining possession by a sub-tenant who claimed to be protected under the Rent Control Acts. The sub-tenant applied that the decree-holder be forbidden from taking actual possession and the bailiff incharge of the execution of the writ of possession be directed accordingly. This application was dismissed. The landlord then applied for police assistance to obtain possession which was granted. The sub-tenant applied that the decree-holder be forbidden from taking actual possession and the bailiff incharge of the execution of the writ of possession be directed accordingly. This application was dismissed. The landlord then applied for police assistance to obtain possession which was granted. The sub-tenant then moved the High Court in revision against the order granting police help to the decree-holder. Roxburgh, J., in allowing the revision held that when once a Court has to come to know that there is a rub-tenant who has resisted execution, the Court should not go on providing the decree-holder with more powerful weapons such as police help, so as to oust the sub-tenant without the landlord applying under rule 97 and thus forcing the sub-tenant to apply under rule 100 after he is evicted: In that connection, the learned Judge observed that a sub-tenant can draw the attention of the Court that police help should not be granted to the decree-holder. It will be seen that these observations do not support the view that a sub-tenant can apply under rule 36 for investigation into bis rights and requiring the Court not to issue warrant for actual delivery of possession. Indeed, the learned Judge expressly stated that the previous application made by the tenant that the decree-holder be forbidden from taking actual possession and that the bailiff be directed accordingly was rightly dismissed. It is also noteworthy that the learned Judge did not hold that the decree-holder Was not entitled to the issue of a warrant for actual delivery of possession after resistance is shown, but he merely held that in the circumstances of the case, the decree-holder was not entitled to police help in the execution of such warrant. The Caleutta case of Debendra Nath v. Parul Bala (supra) thus instead of supporting goes against the view taken by Dixit, C.J., in Dalchand v. Anwarkhan (supra) that a subtenant can apply under rule 36 for investigation of his rights, so that a warrant for actual delivery of possession may not be issued in favour of the decree-holder. For the reasons already stated, I am not prepared to take the View that a third party can apply for investigation of his rights under rule 36. For the reasons already stated, I am not prepared to take the View that a third party can apply for investigation of his rights under rule 36. It seems to me that in Dalchand v. Anwar khan (supra) the decree-holder did not dispute that a sub-tenant of the judgment-debtor was in actual possession and in the circumstances, the only question which remained to be decided was whether the sub-tenant was protected under the Accommodation Control Act May be that when the parties admit all relevant facts in relation to a person in possession, the Court may prima facie decide as to what are the rights of such pesson before issuing warrant for actual delivery of possession; see, Sheikh Yusuf v. Jyotish Chandra AIR 1932 Cal. 241, as explained in Limited Bank of India v. J.C. Mitra AIR 1962 Ass 150, But that is not the position in the instant case, as the decree-holders here do not admit that the Temple is in possession of the lands covered by the decree and for this reason the case of Dalchand v. Anwarkhan (supra) is distinguishable. In Bhawanishanker v. Babulal (supra) a third party filed a suit for declaration that a decree for ejectment passed in another suit was not binding upon him and applied for issue of temporary injunction. In dismissing the plaintiff's revision against orders of the Courts below refusing to issue temporary injunction A.P. Sea, J., observed: "the plaintiff has an alternative efficacious remedy, namely, that of an objection under Order 21, Rule 99 of the Code of Civil Procedure and he can prima facie resist the execution of the decree against him on the ground that he held the property on his own account." These observations cannot be pressed in aid to support the argument that a third party can apply under rules 35 and 36 and claim investigation into his rights. The Learned Counsel for the respondent has not contended that a third party, who obstructs or resists the execution of a decree, can himself apply under rule 97 or 99 for determination of his rights, nor do I think that A.P. Sen, J, in making the aforesaid observations intended to lay down that such a course is possible. The Learned Counsel for the respondent has not contended that a third party, who obstructs or resists the execution of a decree, can himself apply under rule 97 or 99 for determination of his rights, nor do I think that A.P. Sen, J, in making the aforesaid observations intended to lay down that such a course is possible. It appears to me that he only meant to say that a third party, who is not really bound by the decree and is in possession on his own account, can successfully obstruct and resist execution of the decree and even if the decree-holder complains under rule 97, an order would be passed in such third party's favour under rule 99. 10. As a result of the above discussion. I hold that the application made on behalf of the Temple claiming investigation into its rights was not maintainable under rule 35 or 36 and the Court below acted in excess of its jurisdiction in entertaining the same and in postponing the issue of warrant for delivery of possession under rule 35. The decree-holders had also applied for police help which was refused by the Court below on 10th May, 1969. That order has not been challenged before me and I decline to express any opinion on its merits. 11. The revision is allowed. The order under revision is set aside and the application made on behalf of the Temple under rule 36 is dismissed. The Court below is directed to issue a warrant for delivery of actual possession under rule 35.