B. PANIGRAHI, J. ( 1 ) - The instant revisional application is directed against the Order No. 79 dated 24th August, 1994 in Misc. Case No. 503/89 by the 5th Bench, City Civil Court at Calcutta rejecting the petition under section 47 C. P. C. The facts leading to this revisional application are as follows :- ( 2 ) THAT one Jethmull Nai was originally a monthly tenant under the opposite parties in respect of one room on the top floor at premises No. , 10, Rajendra Mullick Street, Calcutta-7 on monthly rental of Rs. 20/payable according to English Calcutta. The aforementioned tenancy continued in the name of Jethmull Nai, the Petitioner's husband up to the month of August. 1960. In the month of September, 1960 it was transferred in the name of the petitioner and therefore, she continued as a tenant of the suit premises under the opposite parties and used to pay rent to them till 1979 against proper rent receipts. The opposite parties had, however, granted two receipts in the name of the petitioner's mother Chotta Bai Nayan allas Chotta Bai Naian who at that point of time was residing with the petitioner in the said premises. The petitioner was under the bonafinde belief that the opposite parties must be granting receipts in respect of the premises. But, when, the petitioner subsequently verified that they had not granted receipts for the entire period, she approached them demanding to pass proper receipts which they assured to do in-course of time. But, all such attempts proved futile. Suddenly, the petitioner came to know from an application dated 16th July, 1988 which was registered as Misc. Case No. 579/88 sent under Registered-Post to Gopi Krishna Kachar that the opposite parties had obtained an exparte decree in Ejectment Suit No. 616/85 against the said Chotta Bai Nayan for eviction from the premises and the Misc. Case was filed for possession of the said premises with the help of police aid. Therefore, the petitioner filed an application under section 47 C. P. C. claiming that the decree said to have been obtained is a nullity to as much as by the time of passing of the decree the petitioner's mother Chotta Bai Nayan was already dead. Therefore, the decree was void and unenforceable in law. Therefore, the petitioner filed an application under section 47 C. P. C. claiming that the decree said to have been obtained is a nullity to as much as by the time of passing of the decree the petitioner's mother Chotta Bai Nayan was already dead. Therefore, the decree was void and unenforceable in law. It is further claimed by the petitioner that the opposite parties decree-holder having full knowledge about the possession of the petitioner in respect of the suit house had purposefully omitted to implead her in the eviction suit. The learned executing court has however. rejected her application. ( 3 ) MR. Tandon, the learned advocate appearing for the petitioner, has highlighted that in this case the learned executing court has shirked from the responsibility in deciding the rights of the petitioner vis-a-vis opposite parties. It has mechanically rejected the prayer of the petitioner without discussing the merits of the case. During the course of hearing, it came to light that the petitioner had already filed and independent suit in T. S. No. 1646/88 which was pending in the court of the learned 11th Judge, City Civil Court. Since no application could be maintainable in face of pendency of a suit, the petitioner chose to withdraw the suit. Mr. Tandem. the learned counsel appearing for the petitioner, has strongly urged that after the amendment of the C. P. C. a separate suit either under section 47 or under Order 21 Rule 97 or Rule 99 having been barred, the determination of right, title and interest of a third party over the suit property has to be decided in the manner provided under Rule 104 and the decision thereunder could only be challenged in appeal. Therefore, the learned executing court in a slip-shod manner should not have disposed of the petition filed by the petitioner under section 47 by rejecting it. ( 4 ) ON a careful reading of the impugned order it appears that the opposite parties had already filed an application for granting police help under Order 21 Rule 35 and also under Rule 97 equally, the petitioner has also filed an application under section 47. It is, none-the-less, true that such an application could not be entertained under section 47 C. P. C. which could have been treated as an application under Rule 99. It is, none-the-less, true that such an application could not be entertained under section 47 C. P. C. which could have been treated as an application under Rule 99. But, be that as it may, since the right of independent suit at the instant of third party having been taken away by Rule 104 of Order 21, all questions including questions relating to right, title or interest of the properly between the parties to a proceedings should have been decided in the manner as provided by Rule 104 of Order 21. The same procedure as is required for disposal of the suit shall as far as possible be followed while disposing of an application under Order 21 Rule 99. In this connection a Division Bench decision of this Court reported in CAL LT 1995 (1) HC 427: 1995 (1) CLJ, page 434 (Subhendu Gupta and Anr. v. Calcutta Vyapar Pratisthan Ltd. and. Ors.) be quoted :-" Held: In terns of Rule 35 of Order 21. it has to be necessarily implied that the right, title and interest of an obstructionist, who is not bound by the decree would have to be determined by the court and possession can be directed to be delivered even by removing a non-impleaded person in a suit where in the decree was passed, if he is bound by the decree and refuses to vacate the property. Again the language in Rule 58 of Order 21 which has substituted the "investigation of claims and objection" by "adjudication of claims and objection" reflects that the legislative intent is to do away with the summary nature of investigation as was necessary in terms of the unamended Rule and brings about finality by imposing a process of adjudication. In terms of Rule 101, the scope of adjudication extends to all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding, on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application and expressly takes away the right of filing separate suit for determination of such questions. There cannot be any controversy that a persons who obstructs has a right of hearing and as such falls within the category of parties to the proceeding. There cannot be any controversy that a persons who obstructs has a right of hearing and as such falls within the category of parties to the proceeding. By Rule 104 such an appealable order has been made subject only to a pending suit, in other words, once recourse has been taken or allowed to be taken to the process of adjudication. as provided in the amended provisions of Order 21, a regular suit cannot be filed for a remedy. " ( 5 ) MR. Tapas Mukherjee, the learned advocate appearing for the opposite parties, has however, drawn my attention that in this case the petitioner having not alleged her dispossession prior to filing of an application, her petition either under section 47 or Order 21 Rule 97 or Rule 99 is bound to be rejected. In support of his contention he has relied upon a decision reported in AIR 1980 Madhya Pradesh page 146 in the case of Smt. Usha v. Monmoun Bajaj and also AIR 1988 Allahabad page 52 in the case of Sona Devi and Ors. v. Dist. Judge. Allahabad and Ors. It is true that in both the decisions it has been held that the third party petitioner should claim dispossession of the properties before filing an application either under section 41 or under Order 21 Rule 99. But a Bench decision of this court reported in 1993 (1) CLJ page 269 in the case of Pioneer Spring and Steel Concern (Put.) Ltd v. Oriental Insurance Co. Ltd held that it is not state qua non for the third party petitioner to claim dispossession before he filed an application in the court for adjudicating his right, title and interest therein. The identical question whether the third party claimant while maintaining an application for adjudicating his right, title and interest over the suit property required to establish to have been dispossessed from the same was examined by the apex court in the case of Ram Ch. Verma v. Shri Jagat Singh Singhl and Ors. [judgement Today 1996 (2) SC page 494] it has been held :-" In the compromise decree, ultimately, the High Court granted possession of the Premises in occupation of the appellant. Verma v. Shri Jagat Singh Singhl and Ors. [judgement Today 1996 (2) SC page 494] it has been held :-" In the compromise decree, ultimately, the High Court granted possession of the Premises in occupation of the appellant. The appellant having been found in possession he is entitled to obstruct execution defending his illegal dispossession in execution proceedings and he is also independently entitled to file application under Order 21 Rule 97 claiming his possession. In view of the fact that he was found to be in possession the finding recorded by the Executing Court as upheld by the High Court that he is a licensee on behalf of Harkesh Rai Agarwal is clearly illegal. We therefore, hold that the appellant cannot be ejected from the premises in his possession except in accordance with law. As regards the execution of the compromise decree is concerned, it would be open to the respondent to proceed against Harkesh Rat Agarwal in accordance with law. " ( 6 ) IN the aforesaid decision the apex court allowed the application of the third party when it was found that he has an independent right to the suit property and can successfully resist the claim for possession by the decree-holder. From the ratio of the above Judgement it is clear that the third party applicant need not be dispossessed from the suit property before he tiled the application under Rule 99 of Order 21. in that view of the facts, the submission of Mr. Mukherjee, the learned counsel appearing for the decree-holder, is bound to fall. Mr. Tandon, the learned counsel in support of the petition has invited my attention to a death certificate, since the learned executing Court has not considered the merit of such death certificate, I do not propose to decide the matter in either way. ( 7 ) ACCORDINGLY, I must vacate the order passed by the learned executing court and remit the matter to him to dispose-of the application filed by the petitioner under section 47 treating it to have been filed under Rule 99 Order 21 C. P. C. and dispose of the case in accordance with law as indicated in the Division Bench case reported in 1995 (1) CLJ. In the result, the revisional application succeeds the order dated 24th August, 1994 passed by the executing court is vacated and the matter is remitted to him to dispose of the same in accordance with law. The parties are directed to bear their own costs. Application succeeds