JUDGMENT - B. LENTIN, J.:---This is an appeal from the order passed by the learned Judge of the City Civil Court, making absolute the Chamber Summons taken out by the 1st respondent under Order 21, Rule 97 of the Code of Civil Procedure. 2. The appellant (original obstructionist) claims to be the tenant of the 1st respondent who is the decree holder in Award No. ABN/D/1277 of 1972, and who is the purchaser of ownership Flat No. 8-37 at Worli Sea Face, Bombay, in a building belonging to the 3rd respondent, namely Venus Co-operative Housing Society, whereof the 1st respondent is a tenant-member. The 2nd respondent, namely J.L. Morison, Sons and Jones (India) Ltd., was at all material times the employer of the appellant. 3. On 24th April, 1969, the appellant was employed as the Sales Manager of the 2nd respondent company in its Bombay area. According to the appellant, in the end of May 1969, he contacted the 1st respondent through an Estate Agent for letting out Flat No. 9\8-37 (referred to hereafter as "the flat"), which the 1st respondent agreed to do at a monthly rent of Rs. 450/-. However, according to the appellant, the 1st respondent insisted on the execution of a company licence. The appellant thereupon approached his employer, namely the 2nd respondent, who executed a Leave and Licence Agreement dated 11th June, 1969 in favour of the 1st respondent in respect of the flat, initially for a period of 11 months, with an option to renew the same given to the licensee, namely the 2nd respondent. The brokerage and compensation in respect to this Flat were deducted by the 2nd respondent company from the appellants salary at source. 4. On 21st July, 1972, the appellant resigned from his employment with the 2nd respondent-company. According to the appellant, he thereafter approached the 1st respondent and requested her that she should allow the appellant to continue to reside in the flat which the 1st respondent agreed to do. The 2nd respondent obtained a letter dated 21st July, 1972 from the appellant whereby the appellant agreed to vacate the flat by 31st August, 1972. This letter is not on record but all the learned Counsel appearing for the respective parties stated that such a latter was passed by the appellant. The appellant, however, did not vacate. 5. The 2nd respondent obtained a letter dated 21st July, 1972 from the appellant whereby the appellant agreed to vacate the flat by 31st August, 1972. This letter is not on record but all the learned Counsel appearing for the respective parties stated that such a latter was passed by the appellant. The appellant, however, did not vacate. 5. Instead, on 4th September, 1972, the appellant filed a suit in the Court of Small Causes at Bombay being Suit No. 4189 of 1972 for a declaration that he is the tenant of the 1st respondent in respect of the flat. The 1st respondent filed arbitration proceedings against respondents 2 and 3, namely the appellants employer and the society respectively, under section 91 of the Maharashtra Co-operative Societies Act, 1960 for an award directing the 2nd respondent to deliver possession of the flat to the 1st respondent. In those proceedings, the appellant was not impleaded as a party. Thereupon on 25th January, 1973, the appellant filed an application for being impleaded as a party to the arbitration proceedings. This application was opposed by the 1st respondent. The appellants application was rejected on the ground that prima facie the appellant had not directed interest in the flat. 6. Being aggrieved by this order, the appellant filed an appeal to the Tribunal and made an application for stay of the arbitration proceedings. On 9th April, 1973, the appellants stay application was rejected on the ground that there was no privity of contract between the appellant and the 1st respondent. On 18th September, 1974, the appellants appeal before the Tribunal was dismissed for default. As stay of the proceedings had been refused, the arbitration proceedings proceeded and on 3rd May, 1973 an award was made ordering the appellants employers, namely the 2nd respondent to vacate the flat by 31st May, 1973 and to pay a sum of 3,600/- as compensation to the 1st respondent from 1st September, 1972 till 30th April, 1973 and a sum of Rs. 450/- per month till vacant possession of the flat was delivered to the 1st respondent. It was held in this award that the dispute fall within the ambit of section 91 of the Maharashtra Co-operative Societies Act, 1960. 7. 450/- per month till vacant possession of the flat was delivered to the 1st respondent. It was held in this award that the dispute fall within the ambit of section 91 of the Maharashtra Co-operative Societies Act, 1960. 7. On 22nd May, 1973, the appellant filed an injunction notice in his Declaratory suit filed by him in the Court of small causes, namely Suit No. 4189 of 1972 for an injunction restraining the respondent from executing the award and on the same day an ad interim injunction was issued in favour of the appellant. Thereafter respondents 1 and 2 filed their respective affidavits in reply. On 1st June, 1973, by consent, an order was passed by the Court of small cause modifying the ad interim junction to the extent that the 1st respondent could execute the award only after giving notice to the appellant. On 30th July, 1973 the appellants Declaratory suit No. 4189 of 1972 filed by him in the court of small causes was dismissed for default. In April 1974, the 1st respondent filed an execution application in the city civil Court at Bombay. On 18th April 1974, notice of execution was given to the appellant regarding intended execution of possession of the flat on 26th April, 1974. On that day, namely 26th April, 1974, the appellant obstructed. Thereupon on 30th April, 1974, the 1st respondent tool out a Chamber summons under Order 21, Rule 97 for removal of the obstruction. This Chamber Summons was resisted by the appellant on the following grounds namely (1) that he is a direct tenant of the 1st respondent, (2) that he was a necessary party to the arbitration proceedings, (3) that the award was fraudulently and collusively obtained behind the back of the appellant and (4) that the award is without jurisdiction and is a nullity. 8. From the order passed by the learned judge before whom this Chamber Summons came up for hearing. It appears that the main ground in which this Chamber Summons was resisted by the appellant was that he is the direct tenant of the 1st respondent . The learned judge came to the finding that beyond the bare would of the appellant, there was nothing to show that how is a tenant in his won right and that his own latter dated 21st July, 1972 addressed to the 1st respondent. The learned judge came to the finding that beyond the bare would of the appellant, there was nothing to show that how is a tenant in his won right and that his own latter dated 21st July, 1972 addressed to the 1st respondent. The learned judge came to the finding that beyond the bare would of the appellant , there was nothing to who that he is tenant in his won right and that his own letter dated 21st July, 1972 addressed to the 1st respondent completely negatived the appellants law of tenant. It was further held that the appellants case that he is a tenant, lacks bona files and is apparently a got-up one. On the basis of these findings, on 8th August, 1974 the Chamber Summons was made absolute. On 9th August, 1974, the 1st respondent obtained possession of the flat from the appellant. 9. Being aggrieved by this order passed on 8th August, 1974 by the learned judge of the City Civil Court, the appellant has filed the present appeal. 10. Despite the fact that in the lower court, the chamber summons was resisted on the four grounds enumerated above, before me, Mr. Agarwal, the learned advocate appearing on behalf of the appellant confined his challenge to the impugned order only on the growing namely that the award was without jurisdiction and hence is a nullity. The remaining grounds urged in the lower court were given up before me. Hence the findings of the learned judge of the city civil court that beyond the before word of the appellant, there is nothing to show that he is a tenant in his own right, that the appellants case of tenant is negatived by his own letter dated 21st July, 1972 and that the appellants case lacks bona fide, and is a apparently a got-up one, remain unchallenged before me. 11. Elaborating on the only contention urged before me, namely that the award is without jurisdiction and hence is a nullity, Mr. Agarwal urged that the arbitration proceedings initiated by the 1st respondent against respondents 2 and 3 were not in regard to any dispute touching the business of the Society and hence fell outside the ambit and purview of section 91 of the Maharashtra Co-operative Societies Act, 1960 with the result that the award is a nullity and was incapable of being executed. 12. 12. In order to better appreciate this contention of Mr. Agarwal, a perusal of section 91 is pertinent. The relevant expert of section 91 is as under :--- "(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution,....... management or business of a society shall be referred by any of the parties to the dispute.... if both the parties thereto are one or the other of the following :--- (a) * * * (b) a member, past member or a person claiming through a member, etc. Section 91(5) provides :--- "Save as otherwise provided under sub-section (3) of section 93" 13. The relevant portion of section 163(1) provides as under :--- "(1) Save as expressly provided in this Act, no civil or revenue Court shall have any jurisdiction in respect of :--- (a) * * * (b) any dispute required to the Registrar, or his nominee,........ (c) * * * 14. Thus, what must first be ascertained is whether there was any dispute touching the business of the society. In urging that there was such relied upon a number of decisions of the Supreme Court and this Court. The first decision relied on by Mr. Agarwal is the case of (Sebharwal Brothers v. Guna Amrit Thandni)1, 1973(3) S.C.C. 750 . In that case it was held that "to touch" means "to come in contact with " and that in the facts and circumstances of that case it did not appear that there was a point of contact between a letting by the member and the business of the society when the society was not itself the landlord of the flat. "No doubt it was the business of the society to let out premises and a member had no unqualified righ to let out his flat or tenement to another by virtue of the bye-law and a breach of the bye-law could affect the defaulting members right to membership. But we are not able to see how letting by a member to another member would touch the business of the society which included inter alia the trade of buying, selling, hiring and letting land in accordance with co-operative principles. But we are not able to see how letting by a member to another member would touch the business of the society which included inter alia the trade of buying, selling, hiring and letting land in accordance with co-operative principles. The letting of flat by Respondent No. 1 was a transaction of the same nature as the society itself and empowered to enter into but such letting by itself did not concern the business of the society in the matter of its letting out flat. Nothing was brought to our notice to show that such a letting would affect the business of the society once it had sold the flat to the Respondent No. 1. The position might have been different if the latter had himself been a tenant of the flat under the society. "To touch" means "to come in contact with": and it does not appear that there is a point of contact between a letting by the Respondent No. 1 and the business of the society when the society was not itself the landlord of the flat." 15. The next decision relied on by Mr. Agarwal is, (Deccan Merchants Co-operative Bank Ltd. v. M/section Dalichand Jugraj Jain and others)2 , A.I.R. 1969 S.C. 1320. In that case it was held that the word "business: in sub-section (1) of section 91 has been used in narrower sense and it means the actual trading or other similar business activity of the Society which the Society is authorised to enter into under the Act and the Rules and bye-laws. Five kinds of disputes are mentioned in sub-section (1), namely (a) disputes touching the constitution of a society; (b) disputes touching election of the office-bearers of a society ; (c) disputes touching the conduct of general meetings of a society; (d) disputes touching the management of a society; and (c) disputes touching the business of a society. It was further held that it is clear that the word "business" in this context does not mean affairs of a society because election of office-bearers, conduct of general meetings and management of a society would be treated as affairs of a society. It was further held that it is clear that the word "business" in this context does not mean affairs of a society because election of office-bearers, conduct of general meetings and management of a society would be treated as affairs of a society. It was further held that although the nature of business which a society does, can be ascertained from the objects of the society, it cannot be said that whatever the society does or is necessarily required to do for the purpose of carrying out its objects is part of its business. The word "touching" is very wide and would include any matter which relates to or concerns the business of a society, but it is doubtful whether the word "affects" should also be used in defining the scope of the word "touching". The question whether a dispute touching the assets of a society would be a dispute touching the business of the society would depend on the nature of the society and the rules and bye-laws governing it. Ordinarily, if a society owns buildings and lets out parts of buildings which it does not require for its own purpose it cannot be said that letting out of those parts is a part of the business of the society. But it may be that it is the business of a society to construct and buy houses and let them out to its members. In that case letting out property may be part of its business. Where the society is a co-operative Bank it cannot ordinarily be said to be engaged in business when it lets out properties owned by it. Therefore the dispute between a tenant and a member of the Bank in a building which has subsequently been acquired by the Bank cannot be said to be a dispute touching the business of the Bank. It was further held that the word "dispute" covers only those disputes which are capable of being resolved by the Registrar or his nominee. It is very doubtful if the word "dispute" would include a dispute between a landlord society and a tenant when the landlord society has not been set up for the purpose of construction buying and letting out houses. 16. The next authority relied on by Mr. It is very doubtful if the word "dispute" would include a dispute between a landlord society and a tenant when the landlord society has not been set up for the purpose of construction buying and letting out houses. 16. The next authority relied on by Mr. Agarwal is the decision of the Division Bench of the Bombay High Court in the case of (Kalawati Ramchand v. Shankarrao)3 , 76 Bom.L.R. 718. In that case it was held that a dispute between a member of a co-operative housing society and his licensee with regard to the possession of flat does not fall within the four corners of section 91 of the Maharashtra Co-operative Societies Act, 1960, because (1) in a dispute touching the business of the society the society itself should raise the dispute and be a disputant ; (2) a member entering into a leave and licence agreement with a third person cannot by his own act touch the business of the society in this narrower sense, unless of course the society objects and raises a dispute with regard thereto ; (3) even if such a dispute between the licensor-member and licensee-occupant may ultimately "affect the business of the society" if licence be granted in contravention of the bye-laws or the rules, still this falls too short of "touching the business of the society"; (4) as long as the occupant-licensee remains in possession complying with the conditions attached to the premises and the requirements and demands of the society in the same manner as the licensor-member could have complied; the society can have no objection unless such licensing is specially prohibited; (5) in a dispute which exclusively affects the member and his licensee the society cannot come into the picture; (c) the dispute in such a case does not touch the internal management of the society even remotely though it may affect its business and impel the society to move to evict the member and his licensee or his licensee alone ; and (7) on a parity of reasoning adopted in Manohar v. Konkar Co-operative Housing Society and S.M. Coperative Banks case the dispute between the licensor and the licensee in such a case must be deemed to be outside the purview of section 91 of the Maharashtra Co-operative Society Act, 1960. It was further held that even assuming that such a dispute between the member-licensor and the occupant-license touches the business of the society, the licensor will have to show further that while entering into the leave and licence agreement with a non-member, the licensors capacity as member was involved. The question in such a case is; was the leave and licence agreement obtained by the licensee from the licensor in the capacity of his being a member of the society ? The true answer to such a question is that after getting possession of the flat the member is free to deal with the same subject, of course, to the limitations imposed by the act, Rules and bye-laws of the society. If there are no restrictions on creating a licence in favour of any one, the membership of the member cannot even remotely come into picture while granting licence. If granting leave and licence is prohibited by the society, such act all the more ceases to be the act in the capacity of member as he obviously acts de hors his capacity, obligations and duties to the society. The true test is : Is the particular act required to be done by him as an obligation as member of the society? Where thee is no such obligation, the capacity of his being member becomes absolutely irrelevant. At page 727 of the Report it was observed : "....It is also necessary that there exists some nexus between the party and his connection worth the affairs of the society giving rise to the dispute." 17. Mr. Agarwal relied on another decision in the case of (Kamala v. Badriprasad)4, 75 Bom.L.R. 764 where it was held that where a dispute regarding premises is not only between the licensor-member of a co-operative housing society and his licensee but the co-operative housing society itself is also a co-disputant alleging occupation of the premises by the licensee to be in breach of its bye-laws and regulations, then such a dispute touches the business of the society and attracts the provisions of section 91 of the Maharashtra Co-operative Societies Act, 1960. The authorities under that Act possess jurisdiction in such a case and an award passed therein cannot be considered as nullity. The capacity of the member-licensor in such a transaction assumes different complexion when considered against the claim of the society. The authorities under that Act possess jurisdiction in such a case and an award passed therein cannot be considered as nullity. The capacity of the member-licensor in such a transaction assumes different complexion when considered against the claim of the society. The member being also a disputant in such a case does not make any difference. 18. Mr. Agarwal also relied on the decision of the Division Bench of the Bombay High Court in the case of (Panjumal Hassomal v. Harpal)5, 75 Bom.L.R. 729 where it was held where a transaction is one arrived at between the licensor-member and the licensee-occupant with the previous approval of the co-operative housing society and the co-operative housing society is effectively interested in ensuring that the possession of the premises is recovered back from the licensee-occupant, then an order or adding the co-operative housing society as a co-disputant for transposing it from an opponent to a co-disputant will be in order. However, a dispute cannot be brought within the purview of section 91 of the Maharashtra Co-operative Societies Act, 1960 merely by the idle formality of having the Co-operative Housing Society as a co-disputant by adding it as a party or by transposition. 19. One can possibly have no quarrel with these propositions authoritatively laid down. However, the contention of Mr. Agarwal suffers from a fallacy which he was unable to over-come, and the fallacy is this : In all the decisions relied upon by Mr. Agarwal the findings arrived at by the Courts were after examining all the material on record. It was only thereafter that the findings were arrived at whether or not the dispute fell within the ambit of section 91, inasmuch as it did not touch the business of the society. However, in the matter before us, there is no material whatsoever on record from which it can be ascertained whether the mischief of section 91 is attracted or not. What in fact Mr. Agarwal invites me to do is, to put in common parlance, to place the cart before the horse and invites me on the basis of the findings of the decisions cited by him, and the observations in those decision, to come to the conclusion that the provisions of section 91 are not attracted, without there being any material on the record to enable me to come to any such conclusion. One of the earliest questions I asked the learned Advocates for the parties was whether the aims and objects of the Society or its Bye-laws were on record. I was given the uniform answer that these were not on record. There is therefore nothing before me to show what the aims and objects of the Society are, or even what the business of the Society is. None of the parties were even in a position to state whether the object and business of the Society is to construct buildings and let them out and so forth. Thus before me there is no material whatsoever from which a conclusion can be arrived at one way or the other, whether the mischief of section 91 is attracted in this case. In these circumstances, to attempt to arrive at any positive finding, would be an idle attempt at conjecture. This would be a matter which could mere appropriately be ascertained, and a finding arrived at, after a detailed inquiry including oral evidence, if any. 20. Mr. Agarwal also invited my attention to the decision of J.M. Gandhi, J, sitting on the Original Side, in Chamber Application No. 340 of 1973 in Execution Application No. 79 of 1973 in Case No. ABM/3/549 of 1973 where it was held that the Executing Court would be entitled to ascertain whether the decree passed was with or without jurisdiction. 21. Once again, there can be no quarrel with the dicta laid down by J.M. Gandhi J. However, the distinguishing feature is that in the matter before J.M. Gandhi J., all the parties before him were in fact parties to the original proceedings, and the matter before J.M. Gandhi J. was under section 47 of the Civil Procedure Code, unlike the matter before me where the appellant was not a party to the arbitration proceedings and the matter before me is a Chamber summons under Order 21, Rule 97. 22. The next question that arises for consideration is, this being a Chamber Summons under Order 21, Rule 97, what is the scope of that Rule and the Rules succeeding it till Rule 103, 23. 22. The next question that arises for consideration is, this being a Chamber Summons under Order 21, Rule 97, what is the scope of that Rule and the Rules succeeding it till Rule 103, 23. Order 21, Rule 97 provides that where the holder of a decree for the possession of immovable property 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 and that the Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same. This has been done by the Chamber Summons taken out by the 1st respondent. 24. Rule 98 provides that where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the Judgment-debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property. This Rule has no application to the matter before me inasmuch as the obstruction has not been caused by the judgment-debtor or any person at his instigation. 25. Rule 99 provides that where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. Thus the phraseology on which the interpretation of this Rule revolves is that the person other than the judgment-debtor must make a claim in good faith that he is in possession of the property on his own account or on account of some person other than the judgment-debtor. Under Rule 99, all that the Court has to consider is whether the person (other than the judgment-debtor) is claiming in good faith to be put in possession of the property on his own account or on account of some person other than the judgment-debtor. In the matter before me, the learned Judge of the City Civil Court has in terms negatived the appellants claim of being in good faith in possession of the property on his own account. In the matter before me, the learned Judge of the City Civil Court has in terms negatived the appellants claim of being in good faith in possession of the property on his own account. The learned Judge has gone to the length of observing in his order that the appellants case of tenancy lacks bona fides and is apparently a got-up one. This finding, has significantly enough, not been challenged by Mr. Agarwal, as already stated above. 26. There can also be no doubt that the procedure prescribed under Order 21, Rule 97 to 102 is a summary procedure not intended for decisions to be made on hearing oral evidence. The order of the learned Judge is not and is not intended to be final. It is tentative and can, at the option of the appellant, be challenged in a substantive suit. It is thus that Rule 103 provides for the, filing of a substantive suit. That rule provides that any party not being a judgment-debt against whom an order is made under Rule 98, 99 or 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive. If at all any authority is necessary for the proposition that the procedure prescribed by these Rules is of a summary nature, the same is to be found in (Tarabai v. H. G. Bank)6 , A.I.R. 1964 Bom. 447 where at page 448 it is observed as under :--- "...We are not prepared to interfere with the finding made and orders passed on application for delivery of possession which are made and heard under the provisions of Order 21, Rule 97 to 102 of the Code of Civil Procedure. In this connection it always requires to be emphasised that the procedure prescribed under these rules is a summary procedure and not intended for decisions to be made by hearing oral evidence tendered on behalf of the parties. Rule 103, therefore provides that the conclusions arrived at and the orders made under the above rules will always be subject to the result of a suit which either party against whom the orders are made would be entitled to file. Rule 103, therefore provides that the conclusions arrived at and the orders made under the above rules will always be subject to the result of a suit which either party against whom the orders are made would be entitled to file. In our view, having regard to the provisions in rule 103, it would not be right for a Division Bench of this Court to investigate into findings made by a Single Judge of this Court on chamber summons in applications for possession under Rules 97 to 102 of Order 21 of the Code of Civil Procedure. The conclusions arrived at by the learned Judge were not intended to be final and could be treated by the appellant at their own option as tentative and could be challenged in a substantive suit. It is, therefore, curious that in a matter of this kind an appeal has been filed on behalf of the appellant." 27. Mr. Agarwal, however, contained that the word "decree" in Rule 97 must necessarily be a valid decree and that even if suo motu the Court comes to the conclusion that the award is a nullity it will not enforce it even though the appellant had into appeared; before the Court. Mr. Agarwal urged that a decree which is a nullity can be challenged at any time in any proceedings and irrespective of Order 21, Rule 97 onwards, the Court will not execute a decree which is a nullity. He relied on the decision of the Supreme Court in the case of (Kiran Singh v. Chairman Paswan)7, A.I.R. 1954 S.C. 340 where it was held that it; is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the courts to pass any decree, and such a defect cannot be cured even by consent of parties. 28. Once again with respect there can be no quarrel with this proposition laid down by the Supreme Court. However, once again, the fallacy of Mr. 28. Once again with respect there can be no quarrel with this proposition laid down by the Supreme Court. However, once again, the fallacy of Mr. Agarwals contention is that unless a detailed inquiry is held into the matter, it is not possible to come to the conclusion whether the award is without jurisdiction and hence is a nullity. On the face of the award, there is nothing to indicate that it is a nullity. The position might well be different where in a given case, on the face of the award or decree, the Court found that it was without jurisdiction or otherwise invalid. In such a case, the petition might be different. As already stated, in the matter before me, on the face of it there is nothing to suggest that the award is without jurisdiction or is invalid or is attracted by the mischief of section 91 of the Maharashtra Co-operative Societies Act, 1960. 29. Mr. Agarwal contended that it would be open for the Executing Court to consider whether the decree sought to be executed was a nullity or not and in support of that proposition, relied on the judgment of Gandhi, J., already referred to above. It must be remembered that section 47 under which the matter before Gandhi, J. was, is quite different from the provisions of Order 21, Rules 97, 98 and 99. Under section 47, all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Hence, under section 47, the parties must be parties to the suit which is not so in the matter before me. Under section 47, the questions must relate to the execution, discharge, or satisfaction of the decree. That is not so under Rules 97, 98 and 99 of Order 21. Hence, while there can be no quarrel with the proposition laid down by Gandhi, J., the same can have no application to the facts of the matter before me, this present Chamber Summons being not under section 47 but under Order 21, Rule 97 of the Code of Civil Procedure. 30. Mr. Hence, while there can be no quarrel with the proposition laid down by Gandhi, J., the same can have no application to the facts of the matter before me, this present Chamber Summons being not under section 47 but under Order 21, Rule 97 of the Code of Civil Procedure. 30. Mr. Agarwal contended that the appellant could not be called "a third party" because he is the person who was sought to be evicted and because the appellant himself had attempted to get himself impleaded as a party to the arbitration proceedings and had contended even at that time that the proceedings were without jurisdiction. The short answer to this contention of Mr. Agarwal is that by whatever name the appellants is called, he would be, under Rule 99, a person other that the judgment-debtor. Whether the appellant himself attempted to get himself impleaded as a party to the arbitration proceedings, is a matter of no consequence. If the appellant had in fact been aggrieved by the order refusing impelading him as a party and if he had been serious enough in his attempt to get himself impleaded, there was nothing to prevent him from moving the High Court if he so desired. 31. It is also not without significant that though the appellant had filed a declaratory suit in the Court of Small Causes being Suit No. 4189 of 1972, he allowed the same to be dismissed for default of appearance on 30th July, 1973. No reason for this curious conduct on the part of the appellant has been forthcoming. Further comment is unnecessary. 32. On behalf of the 1st respondent, her learned Advocate Mr. Jaisinghani relied on a number of decisions. Mr. Jaisinghani relied on the decision in the case of (Rupchand v. Raghuvanshi)8, A.I.R. 1964 S.C. 1889 where it was held that the mere fact that the sub-lessee was not impleaded or that the lessee did not actually contest the suit, did not render the decree passed in the suit as collusive especially when it was not suggested by the sub-lessee that the lessor had even a plausible defence to the claim of ejectment. 33. Mr. Jaisinghani also relied on the decision in (Hamidgani v. Ammasahib)9, I.L.R. 1942 Mad. 33. Mr. Jaisinghani also relied on the decision in (Hamidgani v. Ammasahib)9, I.L.R. 1942 Mad. 271 where it was held that where in the course of execution proceedings but before the conveyance was eventually executed by the Court, the appellant instituted a suit to establish her independent title to the property and the purchaser challenged her right to file the suit on the ground that her claim should have been decided in the execution proceedings and that the suit was barred by reason of the provisions of section 47 of the Civil Procedure Code, the appellant who was not a party to the suit, but who was sought into Court in execution proceedings as the legal representative of the deceased party, could not in those proceedings challenge the decree and that she could establish her right by a separate suit. 34. Mr. Jaisinghani next relied on the decision in the case of (Smt. Kundalata v. Smt. Chandra)10, A.I.R. 1957 Cal. 111 where it was held that a review of provisions of Order 21, Rules 100 to 103, Civil Procedure Code, would make it clear that an order passed on an application made under Rule 100 has been placed upon a different category from orders passed under section 47 of the Civil Procedure Code. Rule 103 having expressly given the right to file a suit and having provided that any order made under Rule 100 would be final and conclusive between the parties subject to the result of a suit which may be filed under Rule 103, there is no room for the contention that the ordinary incidents of an order made under section 47 would be attracted to an order made under Rule 100 and that an order passed under that Rule would he only appealable and no suit would lie to establish the right mentioned in Rule 103. At page 115 Column 2 of the Report is observed : "...In this case all there was no liability on the present plaintiff to satisfy the decree because no decree was passed against her..." 35. Mr. Jaisinghani also relied on the observations of the Division Bench of the Bombay High Court in the case of (Ganesh Narayan Kulkarni v. Ganesh Ramachandra Joshi)11, A.I.R. 1971 Bom. Mr. Jaisinghani also relied on the observations of the Division Bench of the Bombay High Court in the case of (Ganesh Narayan Kulkarni v. Ganesh Ramachandra Joshi)11, A.I.R. 1971 Bom. 16(D.B.) where at page 18 of the Report it is observed as under :--- "...Rule 99 provides that if the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on a account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. This rule makes it clear that in investigating the matter under Rule 92 the Court is only concerned with the fact whether the obstructionist was claiming under the judgment-debtor or not under the judgment-debtor. If he was (not 7) claiming under the judgment-debtor he may be claiming, either on his own account of some other person. If the Court was satisfied that the obstructionist did not claim under the judgment-debtor, that was enough. The Court has in that event to dismiss the application under Rule 97. The Court is not concerned to see in what title the obstructionist was claiming. Rule 103 provides that any party not being a judgment-debtor against whom an order is made under Rules 98, 99 or 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive." 36. Mr. Jaisinghani next relied on the decision in the case of (Umaprasad v. Mrityunjay)12, A.I.R. 1968 Cal. 547 where it was held that while the Court can decide a question under Order 21, Rule 100 only on the basis of possession, it can under section 47 go deeper, even into the question of title. 37. Mr. Mr. Jaisinghani next relied on the decision in the case of (Umaprasad v. Mrityunjay)12, A.I.R. 1968 Cal. 547 where it was held that while the Court can decide a question under Order 21, Rule 100 only on the basis of possession, it can under section 47 go deeper, even into the question of title. 37. Mr. Jaisinghani next relied on the decision of the Division Bench of the Bombay High Court in the case of (Hiralal v. Ramachandra)13, 32 Bom.L.R. 619 where it was held that the locking up of the house which amounted to resistance entitled the purchaser to apply to the Court under Order 21, Rule 97, and that the order applied for by the purchaser having been refused under Order 21, Rule 98, the provisions of Order 21, Rule 103, made the order conclusive leaving it open to the aggrieved party to institute a suit to establish his right. 38. In the light of the discussion above, the order of the learned Judge of the City Civil Court is upheld and the appeal is dismissed with costs. Rule discharged. ------