K. Ramaswamy ( 1 ) THE appellant had obtained a decree in Second Appeal No. 175/71 from the High Court of Rajasthan on 21, 3. 79 of ejectment of Ram Kishan, mesne profits till date of possession and also arrears of rent. That decree had become final. Thereafter the appellant filed an execution application under Order 21 Rule 35 (3) of the Code of Civil Procedure, (for short CPC), on 24. 5. 1979. Thereafter, when one Satyanarain, the first respondent in this appeal had obstructed delivery of the possession on the next day, namely, 25. 5. 1979 he made an application under 0. 21 R. 35 (3) for police assistance to remove the obstruction caused by Satyanarain. The Court directed the appellant to make an application under 0. 21, R. 97 pursuant to which the appellant made second application on 18. 7. 1979 under 0. 21 R. 97 Civil Procedure Code for removal of obstruction caused by Satyanarain. The District Munsif, Executing Court, on 12. 1 81, dismissed that application as being barred by limitation under Art. 129 of the Schedule to the Limitation Act, 1963. On the even day, he filed a third application under 0. 21 R. 97 Civil Procedure Code which was dismissed on 20. 2. 1982 as being barred by res judicata. On an appeal filed by the appellant, the civil Judge, Bikaner, by his Order dated 19. 5 1983, directed removal of obstrucation holding that the third application was not precluded to be filed by the appellant; The High Court in C. R. No. 352/83 filed by Satyanarain in the impugned order dated 3. 2. 1987 set aside the order of the appellate court and confirmed that of the Executing Court. On further review. High Court confirmed its earlier order. Thus, this appeal-by special leave against both orders. ( 2 ) THE crux of the question is whether the application filed on 25 5. 1979 by the appllant though purported to be under 0. 21 R. 35 (3) against Satyanarain, is convertible to be one under O. 21. R. 97. Order 21 R. 35 (3) provides. (~) ( 3 ) A reading of O. 21 R. 35 (3) postulates that the person in possession of the immovable property to be delivered under the decree must be perforce bound by the decree. 21 R. 35 (3) against Satyanarain, is convertible to be one under O. 21. R. 97. Order 21 R. 35 (3) provides. (~) ( 3 ) A reading of O. 21 R. 35 (3) postulates that the person in possession of the immovable property to be delivered under the decree must be perforce bound by the decree. Admittedly, Satyanarain was not a judgment debtor and that therefore he is not bound by the decree unless he claims right, title or interest through the J. D , Ramkishan. The person resisting delivery of possession must be bound by the decree for possession. In other words the resistor must claim derivate title from the J. D. The court gets power under 0. 21, R. 97 to remove such obstruction or resistance and direct its officer to put the decree holder in possession of the immovable perperty after conducting enquriy under Rule 97. ( 4 ) THE procedure has been provided in Rules 98 to 103. We are not, at present, con cerned with question relatating to the procedure to be followed and question to be determined under Order 21 Rules 98 to 102. A reading of 0. 21 R. 97 Civil Procedure Code clearly envisages that "any person" even including the J. D. irrespective whether he claims derivative title from the J D. or set up his own right, title or interest de hors the J. D. and he resists execution of a decree, then the court in addition to the power under Rule 35 (3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree holder gets right under Rule 97 to make application against third parties to have bis obstruction removed and an enquiry there on could be done since each occasion of obstruction or resistance furnishes cause of action to the decree holder to make an application for removal of the obstruction or resistance by such person. ( 5 ) WHEN the appellant had made the application on 25. 5. 1979 against Satyanarain, in law it must be only the application made under Order 21 Rule 97 (1) of Civil Procedure Code The Executing Court, obviously, was in error in directing to make a fresh application. ( 5 ) WHEN the appellant had made the application on 25. 5. 1979 against Satyanarain, in law it must be only the application made under Order 21 Rule 97 (1) of Civil Procedure Code The Executing Court, obviously, was in error in directing to make a fresh application. It is the duty of the court to consider the averments in the petition and consider the scope of the applicability of the relevant rule. On technical ground the Executing Court dismissed the second application on limitation and also the third application, on the ground of res judicata which the High Court has in the revision now upheld. The procedure is the handmaid of substantive justice but in this case it has run its roster. ( 6 ) IN the above view we have taken, the High Court has committed grievous error of jurisdiction and also patent illegality in treating the application filed by the appellant as barred by limitation and third one by res judicata. Once the application, dated 25. 5. 1979 was made, the court should have treated it to be one filed under 0. 21, R. 97 (1) CPC. The question of res judicata for filing the second and third application does not arise. Under these circumstances the appellate court though for different reasons was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused by Satyanarain under 0. 21 R. 35 (3) and R. 97 (2) and 0. 21 R. 101 and 102 of CPC.