Judgment D.K. Seth, J. 1. By an order dated 17-4-1998 the writ petition was dismissed on merit. The said order has been sought to be recalled by the present application for recalling the said order dated 17-4-1998. 2. MR. VK. Burman, learned Counsel for the petitioner has based his claim on the ground that though the name of Shri R. K. Shukla, learned Counsel for the petitioner was printed in the list of 17-4-1998 but the name of MR. VK. Burman was not shown in the list and therefore, he could not appear when the matter was called on. MR. Shukla also did not appear. Therefore, in such circumstances, the revisional application could have been dismissed in default but it could not have been decided on merit. In support of his such proposition he relies on the provisions contained in Order XLI, Rule 17 of the Code of Civil Procedure (hereinafter called as the Code). Mr. Burman had also contended that this writ petition was filed by the petitioner through Mr. R.C. Shukla on 15-10-1992. He had returned the brief before 14-12-1992. On account thereof Mr. V.K. Burman was engaged which fact appears to have been recorded in the order sheet on 14-12-1992 that Shri VK. Bur man had put in appearance on behalf of the petitioner. Therefore, when the matter appeared on 17-4-1998 Shri Shukla did not take any interest nor had informed Mr. Burman about the listing of the case. Since 2-3-1998, on account of a fracture in the hip bone of left leg, all cases 5. ORDER XLI, Rule 17 prescribes that 'where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the Appeal is called on for hearing, the Court may make an order that the appeal be dismissed. "Explanation to Rule 17 provides that "nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits." Relying on the explanation Mr. Burman, learned Counsel for the petitioner had contended that the dismissal of the writ petition on merit is wholly without jurisdiction and void abinitio. 6. MR. Vishnu Gupta, learned Counsel for respondents had countered this submission on the ground that Order XLI applies to an appeal provided in the Code of Civil Procedure and governed under Order XLI. Burman, learned Counsel for the petitioner had contended that the dismissal of the writ petition on merit is wholly without jurisdiction and void abinitio. 6. MR. Vishnu Gupta, learned Counsel for respondents had countered this submission on the ground that Order XLI applies to an appeal provided in the Code of Civil Procedure and governed under Order XLI. It had no application on application in a writ proceeding. Admittedly, the scope of Order XLI, is limited to an appeal within the meaning of the Code of Civil Procedure. Apart from Order XLI, Rule 17, Order IX, Rule 8, provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall dismiss the suit unless the defendant admits the claim or part thereof. In case the defendant admits the whole of the case, the suit may be decreed as a whole. In case the defendant admits part of it then the suit would be decreed only to the extent of the admitted part and be dismissed so far as it relates to the remainder. Thus, it appears that similar procedure has been provided even for original proceeding apart from appeals. 7. BUT however, there is a distinction to the extent that when by adding explanation to Rule 17 (1) of Order XLI, the jurisdiction of the Court has been taken away to dismiss the appeal on merit. Whereas in Rule 8 of Order IX, no such explanation has been added. Whereas in Order IX, Rule 8 the Court has been empowered to dismiss the suit-the dismissal may be in default or may be on merit. When the legislature itself had specifically provided that in the absence of appellant the appeal cannot be dismissed on merit by adding on explanation with specific legislative intent in Order XLI, no such explanation or otherwise have been added m Order IX, Rule 8. In the absence of any such explanation expressing the legislative intent when the legislature itself had made a distinction on in Rule 17 (1) of Order XLI in between dismissal in default and dismissal on merit, the same proposition cannot be invoked in Order IX, Rule 8. The suit may be dismissed either on merit or in default. BUT this proposition has one short-coming. The suit may be dismissed either on merit or in default. BUT this proposition has one short-coming. When a suit is to be dismissed on default under Rule 9, Order IX at a stage before any evidence is adduced or any material is on record in that event in the absence of any material there would be no scope to dismiss the suit on merit. BUT in a case where the evidence has already started and some materials are on record and the defendant appears and the plaintiff does not, in that event, the suit can very well be dismissed even on merit in the absence of the plaintiff. The only condition contemplated in Rule 8 of Order IX is that in the absence of plaintiff the suit cannot be decreed against the defendant unless he admits the claim of the plaintiff either in part or in whole as the case maybe. 8. BY reason of Section 141 the provisions of Code of Civil Procedure does not apply to a proceeding under Article 226 of the Constitution. Explanation to 'section 141 while explaining the expression proceeding specifically excluded the proceedings under Article 226 of the constitution. Therefore, the provisions of Order XLI, Rule 17 (1) or Order IX, Rule 8 of the Code as such cannot be attracted in a writ proceeding. But it is a well established principle that though the said procedure provided in the Code as such is not applicable but still then the principle in appropriate cases, as a public policy, may be attracted. But then it is to be borne in mind that a proceeding under Article 226 of the Constitution is neither in the nature of an appeal or in the nature of a suit. On the other hand, the jurisdiction exercised under Article 226 of the Constitution is a process to examine or scrutinise the decision making process without the power of the appellate Court. Inasmuch as while exercising the jurisdiction under Article 226 the Court does not sit on an appeal on the judgment or order impugned. In fact while exercising the jurisdiction under Article 226, the Court exercises its revisional power. The revisional power even in the Code as provided in Section 115 stands altogether in a different footing from that of the appeal. In fact while exercising the jurisdiction under Article 226, the Court exercises its revisional power. The revisional power even in the Code as provided in Section 115 stands altogether in a different footing from that of the appeal. While for appeal is provided under Order XLI, Order XLII and Order XLIII for the various kinds of appeal contemplated in the code, viz. under Sections 96,100 and 104 thereof, no procedure has been laid down in the Code for exercise of the jurisdiction under Section 115 of the Code. After the substantive Sections in the Code procedural details thereof have been provided in the orders appended to the Code in the 1st Schedule thereof. The 1st. Schedule of the Code does not provide any provision relating to the procedure to be followed in a revision under Section 115 of 'the Code. Such procedure has been supplemented by the rules framed by the High Court which is empowered to do so under Section 129 of the Code or under Section 130 thereof as the else may be. While framing rules under the provisions of the said two sections, the Allahabad High Court had framed rules for revision in Chapter VIII, Rule 25 which provides that provisions of Order XLI, "so far as may be also apply to revisions". 9. IN the cases of Chimman Lal and Ors. v. Syed Zahur Uddin, AIR 1938 All 548 ; Babu Ram v. Bhagwan Din and Anr., AIR 1966 All 1 (FB) and Moti Ram v. Khavali Ram and Am., AIR 1967 All 484 , this High Court has held that in the absence of the appellant, the appeal Court is not debared from deciding the appeal on merit. But by reason of the decision in the case of Thakur Sukhpal Singh v. Thakur Katyan Singh, 1963 (2) SCR 733 , the said ratio decidendi by this Court was no longer a good law wherein it was held that when the appellant does not address any argument, the Court was not bound to look into the record and decide the case on merit and that it was competent to dismiss the appeal for default. There might have been a controversy with regard to the extent of rendering the proposition laid down by the Allahabad High Court a bad law by reason of the said decision in the case of Thakur Sukhpal Singh (supra). There might have been a controversy with regard to the extent of rendering the proposition laid down by the Allahabad High Court a bad law by reason of the said decision in the case of Thakur Sukhpal Singh (supra). But such controversy has been set at rest by amending Order XLI, Rule 17 (1) of the Code by inserting the explanation to sub-section (1) of Rule 17 of Order XLI, through the Amendment Act of 1976. Inasmuch as the Full Bench judgment of this Court in the case of Babu Ram v. Bhagwan Din and Anr. (supra) was rendered in 1966 viz., after the decision in the case Thakur Sukhpal Singh (supra) in 1963. The decision in the case of Thakur Sukhpal Singh (supra) does not lay down any absolute proposition that the Court is debarred from deciding the appeal on merit in the absence of the appellant. On the other hand, it laid down that it is not bound to decide the appeal on merit in the absence of the appellant and it is competent to dismiss the appeal in such case. However, the High Courts of Calcutta, Madras, Patna, Punjab, Jammu and Kashmir and Delhi had maintained a view different from that of the Allahabad High Court as laid down in Babu Ram (supra) by the Full Bench of this Court. The view that when the appellant does not appear, the Court is authorised to dismiss the appeal for default, but it has no power to decide the appeal on merits, was so taken in the case of Taker Sheikh Chowkidar and Ors. v. Otaruddi Howladar and Ors., AIR 1929 Cal 475 : ILR 56 Cal 412 ; Musaliarakath Muhamad alias Rava v. Mahavikrama the Zamorin Rajah Avergal (represented by the Court of Wards Agent and Estate Collector K. Sreenivasa Rao Avergal), and Ors. AIR 1923 Mad 13: ILR 45 Mad 882; Basudev v. Bideshi and Anr. AIR 1929 Rangoon ; Kawleshwar Singh and Anr. v. Raghubir Singh and Ors., AIR 1961 Pat 299; Kundha Singh v. The Punjab State and Ors., AIR 1962 Punj 82; Digendra Chandra Pal v. Radha Ballav Pal, AIR 1953 Assam 191; Emmanual Simon Peters v. Mrs. Alice Peters and Anr., AIR 1976 Delhi 148. 10. IN the Delhi case Emmanual Simon Peters (supra) the Full Bench of this Court in the case of Babu Ram (supra) was dissented from. Alice Peters and Anr., AIR 1976 Delhi 148. 10. IN the Delhi case Emmanual Simon Peters (supra) the Full Bench of this Court in the case of Babu Ram (supra) was dissented from. Even before the explanation added to Order XLI Rule 17 (1) by the 1976 Amendment Act as discussed above, the other High Courts had taken the same view which has been specifically incorporated by the amending Act, through the explanation. Now the Rajasthan High Court in Dargah Committee, Ajmer v. Smt. Hamida 'banu andanr., AIR 1988 Rajasthan 169, had held that since a bar has been provided by means of an explanation declaring that the Court shall not decide the appeal on merit in the absence of appellant is directory in nature. 11. IN my view, it appears, that the view taken by the Rajasthan High Court with respect and humiliation, does not seem to be a proposition correctly laid down having regard to the 1976 amendment which was brought into being to set at rest the controversy through conflicting decision between the other High Courts and the Full Bench of this Court as REFERRED TO hereinbefore when specifically being laid down in the case of Thakur Sukhpal Singh (supra) by the Apex Court. Inasmuch as in order to set the controversy at rest and bring a harmony on the basis of. the conflicting view of the different High Courts with that of the Allahabad High Court, the legislature with specific deliberate legislative intent provided through explanation to sub-rule (1) of Rule 17 that the same cannot be construed to empower the Court to decide the appeal on merit in the absence of the appellant. The explanation is not a mere declaration. The explanation made in sub-rule (1) can not be so construed. The construction of sub-rule (1) through the explanation has been laid down to create a bar in the jurisdiction of the appellate Court in deciding the appeal on merit in the absence of the appellant under sub-rule (1) of Rule 17 of Order XLI. The explanation is a part of sub-rule (1) and has to be read along sub-rule (1) which specifically provides that nothing in sub-rule (1) shall be construed to empower the appellate Court to dismiss the appeal on merit in the absence of the appellant. The explanation is a part of sub-rule (1) and has to be read along sub-rule (1) which specifically provides that nothing in sub-rule (1) shall be construed to empower the appellate Court to dismiss the appeal on merit in the absence of the appellant. Therefore, I am unable to pursuade myself to agree with the view taken by the Rajasthan High Court that the same is declaratory and as such discretionary. The above question is no more a resintegra after the decision in the case of Abdur Rahman and Ors. v. Athifa Begum and Ors., 1996 (6) SCC 62 , where the Apex Court had held that the explanation to Order XLI, Rule 17 (1) debars the High Court from dismissing the appeal on merit in the absence of the appellant. 12. ON the other hand in the case of Kanahi Lal and Ors. v. Naubat Rai, ILR 3 All 519 and Zainub Begum v. Manawar Husain Khanand Anr., ILR 8 All 277 and in the case of Kawleshwar Singh (supra) it was held that when in spite of non-appearance of the appellant, the appeal is decided on merit by dismissing the appeal, the order of dismissal should be treated as one for default. Thus on both account the order of dismissal of the appeal in the absence of appellant even on merit or for default is subject to Rule 19 of Order XLI of the Code. These decisions are reconciliable with the 1976amendment. Now let us examine as to how far the provision contained in Order XLI, Rule 17 (1) or that of Order IX, Rule 8 could be attracted in revision under Section 115 of the Code. Section 115 of the Code empowers the High Court "to call for a record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto. . . . . . . and. . . . . . . . may make such other in the case as it thinks fit. . . . . . . . . . . ". Section 115 itself provides as to what the High Court shall do and what it shall not. . . . . . . and. . . . . . . . may make such other in the case as it thinks fit. . . . . . . . . . . ". Section 115 itself provides as to what the High Court shall do and what it shall not. The framing of the rules of the Allahabad High Court in Chapter VIII, Rule 25 attracting the application of Order XLI in revision is to be read having regard to the scope and extent of the jurisdiction conferred on the High Court as the revisional Court by Section 115 of the Code. The Provisions of Order XLI can be applied to a revision to the extent it is in consonance with the revisional jurisdiction provided in the Code and so far as it is possible. Section 115 of the Code empowers the Court to call for a record and to make such order in the case as it may thinks fit. Normally such orders are made on the basis of an application made by party to the proceeding. But this power of interference by the High Court can be exercised suo motu and it may call for any record of its own motion. Such a ratio was decided in the case of Sarat Chandra Patra v. Narasingha Patra and Anr., AIR 1988 Orissa 4 ; Knanaya Catholic Congress, Kottayam v. Biju Uthup, AIR 1990 Ker 239 ; Mt. Bibi Marim v. Surajmal and Ors., AIR 1936 Pat 591 ; Katragadda China Ramayya v. Chiruvella Venkanraju and Anr., AIR 1954 Mad 864 ; Vrijkunvarjivraj v. Kothari Pitambar Panach and, AIR 1954 SAU 7 ; Shah Velchand Chhaganlal v. R. C. C. Liston, ILR 38 Bom 638 ; Percy. Wood, Chief Accounts Officer, G. I. P. Rail way Bombay v. Mrs. Samuel and Ors., AIR (3) 1943 Nag 333 and Swastik Oil Mills Ltd. v. H. B. Munshi, AIR 1968 SC 843 . 13. THUS, the revisional jurisdiction stands on different footing from that the appellate jurisdiction. When an appeal is required to be filed by the aggrieved party with the requirement of compliance of certain formalities and in default whereof (Order XLI, Rule 3) the memorandum of appeal is liable to be dismissed. 13. THUS, the revisional jurisdiction stands on different footing from that the appellate jurisdiction. When an appeal is required to be filed by the aggrieved party with the requirement of compliance of certain formalities and in default whereof (Order XLI, Rule 3) the memorandum of appeal is liable to be dismissed. Whereas, in revision, it can even be exercised suo moto calling for the records without any application empowering Court to pass such (any) order as it may think fit without inclusion of specific provision that a revision cannot be decided on merit in the absence of the revisionist. The revisional power is exercised by the High Court to kept the subordinate Court within its ambit and jurisdiction. Even if the jurisdiction is invoked by an application by a party still then the High Court retains its power to call for a record on suo moto on its own motion. The procedure provided in Order XLI and 17 (1) does not as such apply to a revisional proceeding. 14. THE jurisdiction exercised under Article 226 of the Constitution is also a revisional jurisdictional. In fact Article 226 of the Constitution is invoked against an order of civil Court by reason of the decision in the case of Ganga Saran v. Civil Judge, Hapur, Ghaziabad and Ors., AIR 1991 Alld 114. THE said decision was rendered having regard to the fact that by virtue of amendment of Section 115, in U. P. there are certain cases where revision lies exclusively to the District Court. THE order passed under such revision by the District Court are not open for challenge before the High Court. Thus in order to provide an alternative remedy, in the case of Ganga Saran (supra), such a view was taken which is admittedly a jurisdiction of revision. The jurisdiction under Article 227 of the Constitution conferring the power of Superintendence on the High Court over the subordinate Courts and tribunals subordinate to it is also a revisional jurisdiction. In my view the decision in the case of Ganga Saran (supra) did not address itself to the provisions of Art 227 of the Constitution (which), in my humble view appears to be a short coming that require reconsideration), and had laid down that the order passed by the Civil Court in revision is final and without any remedy. In my view the decision in the case of Ganga Saran (supra) did not address itself to the provisions of Art 227 of the Constitution (which), in my humble view appears to be a short coming that require reconsideration), and had laid down that the order passed by the Civil Court in revision is final and without any remedy. Inasmuch as it can very well be assailed under Article 227 of the Constitution by exercising power of Superintendence. The Civil Court not being a State within the meaning of Article 12 of the Constitution, it is not amenable to writ jurisdiction under Article 226of the Constitution. That apart lis is between two private individual parties without any statutory obligation as against each other and the Court is not a party to the lis, and, therefore, the order passed by the Court cannot be subjected to the jurisdiction under Art. 226 of the Constitution simply because it has been passed by a Court exercising jurisdiction conferred on it under the Code which is complete in itself specifically when Section 141 makes a distinction between proceeding in civil Court and that under Art. 226 of the Constitution is exercised in respect of order passed by the Civil Court in view of the decision in the case of Ganga Saran (supra) it is the same jurisdiction the High Court exercises under Art. 227 of the Constitution viz; the power of superintendence which is also a revisional jurisdiction. 15. EVEN when an order is not challenged but the matter is brought before the High Court, in exercise of its revisional jurisdiction, the High Court may pass appropriate orders it may deem just. 16. SUCH a view was taken in the case of Qaiser Sibtian v. The District Judge, Allahabad and Ors., 1996 All CJ 516 and Daya Ram v. The Second Additional district Judge, Mirzapurand Ors., 1996 All CJ 751. Similar view the expressed in the case of Jatindra Mohan Nandy v. Krishnadas Nandy, 56 CWN 858, wherein it was held: "in any event this Court is perfectly competent to see that proper orders are made when the matter comes up in revision before this Court. The mere fact that the plaintiffs did not move should not stand in the way of this Court making an order in accordance with law, as all the necessary parties are represented before us. "Mr. The mere fact that the plaintiffs did not move should not stand in the way of this Court making an order in accordance with law, as all the necessary parties are represented before us. "Mr. Justice P. N. Mookherji in the case of Mahendra Dutta and Company (P) Ltd. v. Uma Charan Lal and Ors., 68 CWN 179 (DB), presiding over the Division Bench had laid down: "it is hardly arguable that a point, which goes to the root of the Court's jurisdiction can not be taken in a revision application if the said point has not been urged before the trial Court. That will practical nullify the revisional powers of this Court in very appropriate cases in many instances. If the trial Court has passed an order, which it had no jurisdiction to make, or which was made in the irregular or illegal exercise of its jurisdiction. This Court will be failing in its duty if it does not revise the same simply because the point of jurisdiction was not taken in the trial Court. It is, of course, true the exercise of the revisional power of this Court is a matter of discretion and this discretion should be exercised in favour of the petitioner only in appropriate cases. But it will be wholly inequitable. and wholly against established principle, if the exercise of this discretion is to be refused merely on the ground that a point of jurisdiction, going to the root of the matter, cannot be entertained 'or allowed by this Court, simply because it was not taken in the trial Court. " . . . . . . . . . . . it seems to us that when the Rule comes up for final hearing, before this Court, it is open to this Court, if it finds that the Rule should succeed on some ground, not initially taken, or on a ground, which it was not issued that is, on a ground other than the one, on which it was issued to consider the same and allow the application after of course, giving other party proper opportunities to meet the said objection. This Court it seems, to us, is not so powerless and its power are not so limited as to preclude it from doing justice between the parties in the exercise of its revisional powers, merely because the Rule was not issued at the initial stage on the particular ground or grounds concerned. In deed, in every rule issued by this Court, we have the residuary clause, "such other or, further order as to this Court may deem fit and proper." In our view, those words are comprehensive arid wide enough to include all appropriate revisional grounds and to allow this Court to interfere in a proper case even on a ground which was not taken at the time the rule was issued, or, upon which, the Rule was not initially issued. In the other words, such interference may well be made even on a ground other than the one on which the Rule was issued. In short, in a matter of this kind, where a question of jurisdiction is involved, to deprive a party to suitable relief under the revisional powers of this Court on the ground that the particular objection was not taken in the trial Court, or that even if it was taken in the trial Court, as Rule was issued on that ground, would be to defeat the ends of justice and, in any, view, such a restricted interpretation of the scope of the revisional powers of this Court would not be consistent either with lis or with the principles of justice, or with precedents or authority. "Following the said two decisions, the Hon'ble Mr. Justice N. K. Mitra in the case of M/s Dwarika Das Raghubir frasad Chaudhary, 1987 (1) C. I. J. 479 observed: The High Court is not so powerless and its powers are not so limited to preclude it from doing justice between the parties in the exercise of revisional powers, merely because Rule was not issued at the initial stage on the particular ground or grounds concerned." 17. THE proceedings under Article 226 of the Constitution as such by reason of Section 1/41 excludes application of Order XLI, Rule 17 or Order IX, Rule 8. THE proceeding under Article 227. of the Constitution being a revisional jurisdiction it can be exercised suo motu and it cannot be impaired by any kind of legislation having been so conferred by the constitution of India. THE proceeding under Article 227. of the Constitution being a revisional jurisdiction it can be exercised suo motu and it cannot be impaired by any kind of legislation having been so conferred by the constitution of India. In fact under Article 227 the High Court exercises a revisions! jurisdiction. It is now an established principle of law while exercising jurisdiction under Article 227 of the Constitution, the High Court does not sit on appeal but in revision. Therefore, the previsions of Order XLI, Rule 17 (1) read with Order IX, Rule 8 has no manner of application. In the High Court rules framed in Chapter XXII has provided for the procedure of exercising jurisdiction under Article 226 of the Constitution. While framing the said rule, it has specifically made provision as to in which case the provision of Code may be attracted or applied. While providing procedure in Rule 8 which prescribes that the High Court may follow such procedure and may pass such order as may appear to it to be just. Thus, the High Court is empowered to follow a procedure which is just and it may pass such order as it appears to be just. By reason of such express provision, contained in Chapter XXII of the High Court Rules, it is not possible to attract the application of Order XLI, Rule 17 (1) or Order IX Rule 8 of the Code. THE jurisdiction exercised by the High Court either under Article 226 or under Article 227 of the Constitution or under Section. 115 of the Code are discretionary power with wide amplitude with regard to the decision making process. It stand al together on a footing different from the appellate jurisdiction. Therefore, the provisions of the Order XLI, Rule 17 (1) read with Order IX, Rule 8 cannot be attracted in either of the said three proceedings viz. Under Section 115, CPC, Article 226 and 227 respectively. When ever it is brought to the notice of the Court, it is the duty of the Court to pass appropriate Order even on merits either dismissing or allowing the revision on merit even when one or the other or either of the parties does not appear. But such orders would always be open either to review or to recalling provided sufficient grounds are. But such orders would always be open either to review or to recalling provided sufficient grounds are. made out, and the Court is satisfied on such ground or cause or otherwise that it is just and proper either to review or recall the order and may make appropriate order 'having regard to the facts and circumstances of the case as the justice would require it do. For all these reasons, I am unable to pursued myself to agree with the contention of Mr. V. K. Burman that the writ petition could not have been decided on merit in the absence of the petitioner. But the fact remains that the said order can very well be recalled or reviewed as ob served earlier. 18. IN the present case, from the facts disclosed in the application for recalling, it appears that Shn R. C. Shukla, learned Counsel for the petitioner did not appear though his name was printed in the list. Neither any accommodation was sought for on his behalf. This presupposes the correctness of the statement made in the application for recalling to the extent that Mr. Shukla had returned the brief, and that necessiated the engagement of Shri VK. Burman, which fact was noted in the order sheet dated 14- 12-1992. Since the name of Shir VK. Burman was already on record, his name should have been printed in the cause list. Admittedly, his name was not shown in the cause list. It is also not disputed that on account of fracture in his hip bone of left leg, the cases of Mr. Burman were adjourned by order of Hon'ble the Chief Justice between 2-3-1998 till 31-5-1998. Thus, there were sufficient reason for non- appearance of Mr. Burman and non-representation of the petitioner. This situation presupposes that the petitioner who had engaged his Counsel in such circumstances was prevented by sufficient reason to appear on 17-4-1998. Now an order dismissing the writ petition on merit as held above is capable of being recalled even when decided on merit. It is open to the petitioner in such circumstances either to make an application for review or for recalling of the whole order provided sufficient ground is made out for recalling or reviewing the order. The facts disclosed above, in my view, despite vehement objection by Mr. Gupta, is a case fit for intervention and recalling of the order dated 17-4-1998. The facts disclosed above, in my view, despite vehement objection by Mr. Gupta, is a case fit for intervention and recalling of the order dated 17-4-1998. Accordingly, the order dated 17-4-1998 is hereby, recalled and the case is restored to its original file. 19. SIMULTANEOUSLY when addressing the Court on the application for recalling, both the learned Counsel insisted that since they have already addressed even on merit while addressing the question discussed above and both of them being prepared to argue their respective case, the writ petition should be taken up for hearing and disposal on merit, particularly when both the learned Counsel had ad dressed the Court for days together and had addressed their respective arguments on merit as well. In such circumstances, the writ petition was treated as on day's list and was heard. Both the learned Counsel had addressed the Court extensively on merit of the case. After the arguments were concluded, the judgment was reserved on 2-9-1998 after hearing the Counsel at length on25-8-1998and2-9-1998 respectively. Therefore, now let us examine the case on merit as well as the merit of their respective arguments made by Mr. Bur man and Mr. Gupta on behalf or the par ties represented by them. 20. IN execution of a decree dated 7-11-1963 passed in Original Suit No. 229 of 1963 between laran Chand and B. L. Mitra, the suit property was sold in auction on 17-4-1965. The sale certificate was is sued on 23rd August, 1965. The petitioner filed an application under Order XXI, Rule 58 claiming that she was in possession of the disputed house in pursuance of an agreement for sale executed by B. L. Mitra on 3- 8-1962, in part performance whereof the possession of the said property was delivered to the petitioner. The said 'objection was registered as Misc. Case No. 52 of 1965 which was ultimately dismissed on 23rd May, 1965 on merits, whereafter the auction sale was confirmed by issuing sale certificate on 23rd August, 1965. The petitioner filed original suit No. 88 of 1965 on 21st September, 1965 which was dismissed on 21-12-1996. First appeal No. 138 of 1967 preferred against the said decree dated 21-12-1966 was allowed by remanding the case for disposal with the direction for disposal of the substitution application and if the substitution application is allowed, the suit would be decided once again. First appeal No. 138 of 1967 preferred against the said decree dated 21-12-1966 was allowed by remanding the case for disposal with the direction for disposal of the substitution application and if the substitution application is allowed, the suit would be decided once again. But ultimately, the application for substitution was dismissed, against which a revision was filed and the said revision was also dismissed. Thereafter another revision was filed before this Court which was dismissed by an order dated 16th August, 1979. Thereupon, the respondent No. 1 filed an application under Order XXI, Rule 95 for delivery of possession of the property sold in auction to him. Against the said application, the petitioner filed his objection under Order XXI, Rule 63 opposing the delivery of possession and took several objections. The application filed by respondent No. 1 for delivery of possession was dismissed by an order dated 28-11 -1983, against which a revision being civil revision No. 26 of 1984 was moved. By order dated 15th September, 1992, the said revision was allowed and the order dated 28-11-1983 was set aside while directing the Court below to decide the petitioner's application dated 22-4-1966 for deciding the question of delivery of possession. It is this order, which has since been challenged in this writ petition. It is the contention of the petitioner that since once possession has been delivered, though symbolic, no second application for delivery of possession would lie. Learned trial Court had found favour with this submission whereas, the revisional Court had held against the said view and was of the view that second application is maintainable. 21. MR. Burman, Counsel for the petitioner argued that the petitioner was put into possession in part performance of an agreement for sale executed on 3rd August, 1962 even before a date the original suit No. 299 of 1963 was filed and decreed. The petitioner thus had acquired an independent right within the meaning of Section 53-A of the Transfer of Property Act. So it cannot be said that the petitioner was claiming title or possession through or under or on behalf of the judgment-debt or. Therefore, the said property already possessed by the petitioner, can neither be subjected to attachment nor sale. He next contends that Original Suit No. 8 of 1965 filed by the petitioner was a misconceived suit. So it cannot be said that the petitioner was claiming title or possession through or under or on behalf of the judgment-debt or. Therefore, the said property already possessed by the petitioner, can neither be subjected to attachment nor sale. He next contends that Original Suit No. 8 of 1965 filed by the petitioner was a misconceived suit. Therefore, its dismissal does not take away the right of the petitioner to resist the execution in view of Section 53-A of the Transfer of Property Act on the principal that such a right maybe used as a shield and not as a sword. He then contends that once the auction purchaser having been satisfied with the symbolic possession and having accepted the decree to have been executed fully, it is no more open for him once again of ask for possession in execution of the decree, which stood finally satisfied by the delivery of symbolic pos session. His further contention was that the auction purchaser having himself filed Original Suit No. 77 of 1984 for delivery of actual possession and the said suit being still pending, it is no more open to the auction purchaser to take resort to Order XXI, Rule 95 of the Code, after having received symbolic possession without any protest and the execution having been struck off. 22. MR. Burman relied on various decisions in support of his respective con-' tendons. It shall deal with those decisions at appropriate stage. Sri Vishnu Kumar Gupta, learned Counsel for respondent No. 1 submits that the revisional Court had decided the case correctly and the proposition laid down by it is in accordance with law. 23. MR. Vishnu Kumar Gupta, learned Counsel for the respondents fur ther contends that the right under Section 53-A can be used as a shield against the transferor or any person claiming under him, but not against delivery of possession to the auction purchaser after the property is sold in auction, particularly in view of the fact that till date, the petitioner had never sought to enforce his right for obtaining specific performance of the con tract, though the petitioner alleged by had an independent right and was not claiming through the judgment-debtor so advanced through her application under Order XXI, Rule 58. Such objection was dismissed. Such objection was dismissed. Once the validity of the attachment having been challenged and the same having been determined against a party, such party is precluded from raising the selfsame question once again. The dismissal of the objection put forth through the application under Order XXI, Rule 58 of the Code having found support by reason of dismiss al of Original Suit No. 88 of 1965, filed by the petitioner for establishing her right that the said property could not be attached, sold or taken possession of in execution of a decree against the judgment-debtor and stands confirmed. The rights between the parties having been decided twice over, it is no more open to the petitioner to reagitate the same once again. He contends further that the right claimed under Section 53-A has since become barred by time by reason of non-seeking of specific performance of the agreement which was open to the petitioner through which the said agreement for sale and the alleged part performance could have been used as a sword. The petitioner having waived her right is estopped from defending the delivery of possession. He contends further that Order XXI, Rule 95 does not conceive of delivery of symbolic possession. Delivery of symbolic possession was given in view of order of stay passed in the proceedings under Order XXI, Rule 63 of the Code. The application under Order XXI, Rule 95, could be filed only after 18th April, 1966 when the stay in the proceedings under Order XXI, Rule 63 was vacated. MR. Gutpa had also relied on some decisions, which will be dealt with at appropriate stage. 24. AFTER having heard learned Counsel for the parties and perusing the order and records, it appears that as admitted by the petitioner herself, she had been claiming through judgment-debtor, by whom the petitioner had been put into the pos session by virtue of an agreement for sale executed in 1962, therefore, it is the admitted position that the petitioner had been in possession of the suit property and thereby claiming title under the judgment-debtor. Thus, the suit property is in occupancy of some person claiming a title created by the judgment-debtor as has been claimed by the petitioner. The petitioner has not claimed that the judgment-debtor had executed any sale-deed. Thus, the suit property is in occupancy of some person claiming a title created by the judgment-debtor as has been claimed by the petitioner. The petitioner has not claimed that the judgment-debtor had executed any sale-deed. Only possession was delivered to her pursuant to an agreement for sale, therefore, she cannot claim anything more than occupancy on behalf of the judgment-debtor. The petitioner has claimed that she entered into possession by virtue of a right created by the judgment-debtor even before the suit was filed. However, this assertion did not find favour of the Court in Original Suit No. 88 of 1965 filed by the petitioner seeking to establish such assertion. Once this contention is negatived, it is not open to the petitioner to raise the issue once again. The right having been claimed on the basis of the alleged fact of delivery of possession, a fact which the petitioner failed to establish as aforesaid, it cannot be said that any title is created by the judgment-debtor before attachment. Order XXI, Rule 95 provides that where an immovable property is in occupancy of the judgment- debtor or some person on his behalf other than person claiming title created by the judgment-debtor before attachment, in that event the Court shall on application of the auction purchaser, order delivery of possession putting such purchaser into possession and if necessary by removing any such person who refuses to vacate the same. A person occupying the property under a title created by the judgment- debtor before attachment, however, cannot be removed. The petitioner, as it appear from the fact, has failed to establish that she is a person in occupation under a title created by the judgment-debtor before attachment. 25. SINCE in the present case admittedly the petitioner is claiming occupation on behalf of the judgment-debtor by virtue of the alleged agreement for sale and delivery of possession without claiming that any sale deed has been executed in her favour by which any title is created, there fore, at best she can be treated to be a person claiming a title proposed to be created by the judgment-debtor before the attachment capable of being enforced upon establishment of such right through appropriate legal proceedings and until it is so established and enforced, the same cannot be used as a shield in a proceeding under Order XXI, Rule 95. Admittedly, the right that is being claimed is a right under Section 53-A of the Transfer of Property Act. The right contemplated in Section 53-A of the said Act cannot be used as a sword but can be used as a shield as against the transferor. In the absence of any such right being established, she can not but be a person in occupancy on behalf of the judgment-debtor. Thus, the situation squarely comes within the ambit of Order XXI, Rule 95. 26. THE right conferred under Sec tion 53-A is a right which is available to a defendant to protect his possession, was the view taken by the Calcutta High Court in the case of Promod Kumar v. Danta Mara Tea Company, 1940 (66) Indian Appeal 293 : AIR 1940 P. C. 1 and also by the Apex Court in the case of a ; Delhi Motor Company v. Basurkar, AIR 1968 SC 794 , as well as various other High Courts. Admittedly, this Section does not create a title in the defendant. It merely operates as a Bar to the transferor or any person claiming through him asserting title. It is limited to a case where the transferee had taken possession and against whom the transferor is debarred from enforcing his right other than what is provided in the contract. This Section imposes a Bar on the transferor. THE transferee gets a right only to resist the transferor or any person claiming through or under him. It confers only a right to the transferee to protect his pos session against the transferor any one claiming undejr him, as was held in the case of Ram Pratap Karyan v. Industrial Petroleum Company, AIR 1950 Cal 23. Section 53-A imposes a statutory Bar on the transferor but it confers no title on the transferee. It was so held in the case of Girraj Narain v. Babu Lal, AIR 1975 Pat 58 and Sita Ram Rao v. Vibhisana Pradhan, AIR 1978 Orissa 222. This Section does not confer title on the defendant in possession. It was so held in the case of Kuchwar Lime Stone Company v. Secretary of State, AIR 1936 Pat 372. By virtue of this Section, the transferee cannot maintain a suit on title as was held in the case of S. M. Banerjee v. Kuchwar Lime Stone Company, AIR 1941 PC 128. It was so held in the case of Kuchwar Lime Stone Company v. Secretary of State, AIR 1936 Pat 372. By virtue of this Section, the transferee cannot maintain a suit on title as was held in the case of S. M. Banerjee v. Kuchwar Lime Stone Company, AIR 1941 PC 128. This view was also approved in the case of Ram Gopal v. Custodian (supra). On the other hand, in the case of Technical Studio Private Limited, v. Lila Ghosh, AIR 1979 SC 2425, it was held that this Section does not confer any active title on the transferee except imposing a statutory Bar on the transferor. In the said case, on the basis of a compromise, the transferee was put into possession of the property for a period of 16 years on lease but no deed of lease was ever executed. In a suit for pos session, the transferee sought to establish his right. Whereas, it was held that it created no interest in favour of the transferee though he could have protected his eviction for 16 years by reason of part performance, but on the expiry of the said period, he had no protection at all. Drawing analogy of the said decisions, it appears that the transferee cannot even protect his right after the period of specific performance is barred by time even as against the transferor. Since by reason of such possession, the transferee does not acquire any title, he could not claim title after his right to seek specific performance ceases/lapses on the expiry of the period of limitation. Then again it is a right only against the transferor and not against any person, who is not claiming through or under the transferor. The right is also a right to resist its possession, that too against a transferor or any person claiming under him with the exception as regards a person claiming as a transferee without notice. In the case of Audinarayudu v. Mamgamma, AIR 1943 Mad 706 , it was held that a judgment creditor, who attaches the property of a judgment-debtor in possession or in tended purchaser is a person claiming under the transferor. 27. IN the above situation, the law appears to be clear and unambiguous. In the case of Audinarayudu v. Mamgamma, AIR 1943 Mad 706 , it was held that a judgment creditor, who attaches the property of a judgment-debtor in possession or in tended purchaser is a person claiming under the transferor. 27. IN the above situation, the law appears to be clear and unambiguous. Now let us see whether the auction purchaser is a judgment creditor attaching the property of the judgment-debtor in pos session of an intended transferor whether the auction purchaser is a transferee through auction without notice or in other words what is the status of an auction purchaser in securing the delivery of pos session. 28. NOW in the present case, admittedly, the property was attached after the. alleged possession of the petitioner. The auction purchaser is not judgment creditor. Admittedly, in the present case, he is a stranger to the proceedings between 'judgment creditor and the judgment-debt or. The auction purchaser had no notice of the transfer by the judgment-debtor to the petitioner. The auction purchaser has purchased the property, which was sold through auction without notice of the alleged transfer to the petitioner by the transferee pursuant to the agreement for sale. Admittedly, the judgment creditor might have been claiming through the judgment-debtor. But a stranger auction purchaser does not claim either through the judgment-debtor or through the judgment creditor. As soon as the property was sold in auction and the said auction sale is not set aside and is confirmed, no right, title and interest of said transferee being the petitioner, can either be used as a shield or sword as against the auction purchaser. The auction purchaser as neither claiming through or under the judgment. creditor or the judgment-debtor. On the other hand, it is the Court which had sold the property to the auction purchaser and it is the duty of the Court to put the auction purchaser into possession. The again it was open to the petitioner to resist the said sale or even the delivery of possession in execution of the decree even after the auction sale. The petitioner, admittedly, had taken such step once through the proceedings under Order XXI, Rule 58 and then again under Order XXI, Rule 63 and by filing Original Suit No. 88 of 1965. The petitioner, admittedly, had taken such step once through the proceedings under Order XXI, Rule 58 and then again under Order XXI, Rule 63 and by filing Original Suit No. 88 of 1965. All these proceedings having been decided against the petitioner and so long the same are not reversed, those will be staring on the face of the petitioner. The petitioner cannot claim any right or resist his possession so long the auction sale is not set aside. So long as the auction sale remains, the same cannot be treated to be an infructuous exercise by the Court. If on technicalities, such an interpretation is given, in that event, it will cause death blow to the entire justice delivery system. Elaborate proceedings have been made for carrying on auction sale and its confirmation and then there are elaborate proceedings for resisting auction sale and delivery of possession in the form of Order XXI, Rule 58, Order XXI, Rule 63, which had also been resorted to inviting orders against the petitioner with the eyes open. After having been unsuccessful in such proceedings, it is no more open to the petitioner to reagitate her right between the same parties once more. Inasmuch as the decisions on the application under Order XXI, Rule 58, Order XXI, Rule 63 and Original Suit No. 88 of 1965 would be operative as a res judicata as against the petitioner. In as much as the principle of resjudicata being a public policy is also applicable at different stages of the same proceedings. Reference may be made to the decisions in the case of Y. B. Patil v. Y. L. Patil, AIR 1977 SC 392 ; Prahlad Singh v. Col. Sukhdev Singh, AIR 1987 SCI 145. 29. THE argument that if symbolic possession is obtained in that event no second application would lie, may be applicable in respect of a cases covered under Order XXI, Rule 96 where property is in possession of any tenant or any person entitled to occupy the same. It is not necessary to go into such proposition in this case. 29. THE argument that if symbolic possession is obtained in that event no second application would lie, may be applicable in respect of a cases covered under Order XXI, Rule 96 where property is in possession of any tenant or any person entitled to occupy the same. It is not necessary to go into such proposition in this case. Admittedly, the Original Suit was instituted in 1963 and the petitioner had claimed to have come into possession on 3rd August, 1962 on the basis where of, she had filed a suit which stood dismissed and thereby nullifying her claim to have entered into possession even before the suit and as such she cannot resist the claim of respondent No. 1 auction purchaser on the ground that she was entitled to occupy the same even otherwise than a tenant. Order XXI, Rule 96 applies to the cases where property is in occupation of tenant or some person who are entitled to occupy that creates an interest in them to occupy the said property. In the present case, no such interest having been found to have been established despite her attempt to do so in Original Suit No. 88 of 1965 which was decided against her, she cannot bring her case within the ambit of Order XXI, Rule 96. If it is a case within the meaning of Order XXI, Rule 95, in that event the auction purchaser has a right to be put into possession even by removing the person who refuses to vacate the said property. So long such relief is not granted the right to resort to Order XXI, Rule 95 by the auction purchaser is not exhausted. Delivery of symbolic possession is not contemplated in Order XXI, Rule 95 when suit property is in occupation of the judgment-debtor or some person occupying the same on his behalf. THE petitioner having claimed to have entered into the possession through the judgment-debtor, how she cannot claim any interest, right or title adverse to that of the judgment-debt or and, therefore, they cannot come out of the scope of Order XXI, Rule 95. Delivery of symbolic possession would in no way stand in the way of making an application under Order XXI, Rule 95. Delivery of symbolic possession would in no way stand in the way of making an application under Order XXI, Rule 95. Order XXI, Rule 95 is not a right given to the auction purchaser but is an obligation cast on the Court to deliver possession to such auction purchaser to whom the Court had sold the property in auction. Therefore, it is Court's bounden duty to deliver possession of the property sold by it after the sale is confirmed even by removing the person occupying the same who refuses to vacate. Such situation is apparent from the expression used in Rule 95 which envisages that: "the Court shall. . . . . . . . . . . . . order delivery to be made by putting such purchaser. . . . . . . . . in possession of the property and if need be, by removing any person who refuses to vacate the same. " 30. SO long purchaser is not put into possession even by removing the person in occupation who refuses to vacate, the auction purchaser has a right to make an application for delivery of possession. If such an application is made, it is the duty of the Court to put him into possession. The phrase "if need by removing any person who refuses to vacate the same" indicates that such delivery of possession should be actual and physical and not symbolic Therefore, symbolic delivery of possession does not exhaust the scope of Rule 95 which cast an obligation on the Court to deliver actual physical possession. Therefore, it cannot be said that the second application does not lie when symbolic possession is already delivered. 31. IN the present case, admittedly, the symbolic possession was delivered. This fact has not been disputed by the petitioner. Therefore, the question in the revision which is impugned in the present writ petition appears to be have been correctly decided following the principles of law. Thus, I do not find any reason to interfere with the order dated 15th September, 1992 passed in Civil Revision No. 26 of 1984 impugned in this writ petition. 32. NOW let us examine the decisions cited at the bar in support of the respective contentions having regard to the facts and circumstances of the case and the questions involved. Mr. 32. NOW let us examine the decisions cited at the bar in support of the respective contentions having regard to the facts and circumstances of the case and the questions involved. Mr. Burman had relied on the decisions in the case of Jagdish Nath Ray v. Nafar Chandra Paramanik and Ors., AIR 1931, Cal. 427. In the said case, it was held that once symbolic possession is delivered in execution of a decree to the decree holder, in that event it is not open to the decree holder to ask for khas possession in second instalment. The facts of the said case are wholly distinguishable to the ex tent that it was the decree holder who had been seeking possession of the property. Whereas, in the present case, it is the Court itself seeking to deliver the possession to the auction purchaser to whom the Court is bound to deliver possession after having sold the property in auction. There fore, the ratio decidendi in the said case cannot be attracted in and circumstances of the present case. In the present case the facts, it is not being alleged that the auction purchaser had obtained symbolic possession with ulterior object of his own as was the reason for which the proposition in the case of Jagdish Nath (supra) was laid down. Inasmuch as in the said case, it was held that there was no complaint against the peons Act and, it was one of those cases, in which a decree holder having armed with a decree after khas possession executed that decree in the first instance by obtaining symbolic possession only with some ulterior object of his own and, therefore, subsequently and as a second instalment asked for khas possession, which was deprecated. Whereas in the present case, it was the bounden duty of the Court to put the auction purchaser into peaceful pos session even by removing persons in pos session. If ultimately symbolic possession is given, the same does not preclude the Court from giving actual peaceful posses sion in terms of Order XXI, Rule 95. Thus, the said decision cannot be attracted in the facts and circumstances of the present case. 33. THE decision in the case of Jai Gopalmundra v. Gulab Chand Agarwalla and Ors., 1974 Orissa 173 (F. B.) also deals with delivery of possession to the decree holder entitled to khas possession. Thus, the said decision cannot be attracted in the facts and circumstances of the present case. 33. THE decision in the case of Jai Gopalmundra v. Gulab Chand Agarwalla and Ors., 1974 Orissa 173 (F. B.) also deals with delivery of possession to the decree holder entitled to khas possession. On the background of the contention that the delivery of symbolic possession, which was held by the Full Bench to be a delivery of actual possession, it was held that it was open to the decree holder to file a suit for recovery of possession on the basis of such symbolic possession. This decision also does not help Mr. Burman in the facts and circumstances of the case, which is wholly distinguishable. THE said decision was rendered on the ground that the person who was holding the property was a person other than a person entitled to occupy the same and bound by the decree. Since the person therein was not a person who could be evicted "by execution of the decree having been claiming through the judgment-debtor, there was no alternative for the Court to delivery symbolic possession and on the strength of such symbolic pos session, the judgment-debtor was entitled to file suit for eviction of such a person in occupation. Thus, the facts therein are wholly distinguishable from the facts of the present case, as discussed herein before, while referring to the decision in the case of Jagdish Nath Roy (supra). 34. THE decision in the case of Rama Subudhi v. Bhagirathi and Ors., AIR 1982 Orissa 86, also does not help Mr. Burman in view of the facts and circumstances of the case, which is altogether distinguish able from those of the present one. In as much as in the said case, on application for delivery of actual possession, the Commissioner was appointed to demarcate the property at the time of delivery of possession after evicting the judgment-debtor therefrom. THE Commissioner had also reported that he had demarcated the land at the time of delivery of possession. THE decree holder also made an endorsement on the back of the writ that he had got actual physical possession. Thereafter, he complained that the delivery of possession was only a paper transaction and not actual physical delivery. THE Commissioner had also reported that he had demarcated the land at the time of delivery of possession. THE decree holder also made an endorsement on the back of the writ that he had got actual physical possession. Thereafter, he complained that the delivery of possession was only a paper transaction and not actual physical delivery. THE very fact as noted above, being the basis of the said decision, is a distinguishing feature, which renders the ratio decidendi therein inapplicable by reason of the peculiar facts and circumstances of the case as discussed above while dealing with therario decidendi in the case of Jagdish Nath Roy (supra ). For the same reason, the decision in the case of Sobha Lal v. Laxmi Lal, AIR 1981, Raj 20, also is distinguishable and cannot be attracted in the facts and circumstances. Inasmuch as in the said case, the decree holder on his own accord accepted delivery of possession when the wife and children of the judgment-debtor were sitting in his shop and in pursuance thereof, he had got a wall in between the room demolished and endorsed on the warrant for possession that he had obtained the possession. Therefore, it cannot be said that no actual possession was taken by the decree holder and, therefore, fresh warrant for delivery of possession could not be issued to him. On fact, on which the ratio was decided, is altogether distinguishable from the facts of this case as recited while dealing with the decision in the case of Jagdish Nath (supra). 35. ON the same analogy, the decision in the case of Shew Bux Mohata and Anr. v. Bengal Breweries Ltd. and Ors., AIR 1961sc 137, cannot also be attracted and applied in the facts and circumstances of the case. Inasmuch in the said case, the possession was taken by the decree holder in a suit for mortgage accepting possession with the defendant remaining in the premises. In the said case, the decree holder was con tent in obtaining possession of the proper ty in execution of decree without actual removal of the person in possession under Order XXI, Rule 35, though he could have asked for removal of such person in the said proceedings and in such a case he is precluded from asking for actual possession at a subsequent stage. Such a view was taken on account of the reason, namely, that where the decree- holder of their own accepted delivery of possession with defendant remaining on the possession with their permission and they granted a receipt acknowledging full delivery of pos session and permitted the execution case to be dismissed on the basis that full pos session had been delivered to them by the defendant, they are bound by the position that the decree has been fully executed and that the decree cannot be executed any more. Whereas, in the present case, it is not the decree holder but the auction purchaser, who is being put into possession under Order XXI, Rule 95 of the Code. Admittedly, in the present case, the person in possession has failed in resisting his possession in two successive proceedings. Therefore, now the same cannot be reagitated, which is a distinguishing feature from the facts in the case of Shew Bux (supra ). 36. THE decision in the case of Brahmdeo Chaudhury v. Rishikesh Orasad Jaiswal and Anr., AIR 1997 SC 856 , is also distinguishable on facts. Inasmuch in the said case, the decree holder sought for possession under Order XXI, Rule 35 and not a case dealing with an Order XXI, Rule 95. THE question thereon was primarily based on the right of a decree holder to obtain possession and not of an auction purchaser. A decree holder is entitled to possession in execution of the decree and pursuant to the terms of the decree. Whereas, the auction purchaser stands on a different footing, where the property having been sold in auction by the Court, it is the duty of the Court to see that the auction purchaser is put into possession. Therefore, on the same anology on which the decision in the case of jagdish Nath Roy (supra) was distinguished, the present case is also being so distinguished. The decision in the case of Silver-line Forum Private Limited, v. Rajiv Trust and Anr., AIR 1998 SC 1754 , is also distin guishable. The said case confined its decision on the interpretation of Order XXI, Rule 97, which has nothing to do with Order XXI, Rule 95, and, therefore, ratio decidendi therein could have no manner of application in the present case. 37. The said case confined its decision on the interpretation of Order XXI, Rule 97, which has nothing to do with Order XXI, Rule 95, and, therefore, ratio decidendi therein could have no manner of application in the present case. 37. ON the same anology, the decision in the case of Jaimal Singh Dasaundha Singh v. Rakha Singh and Ann, AIR 1957 Punj 17, is also distinguishable, which is related to the taking of possession by the decree- holder and not by the auction purchaser. 38. THERE being a distinction between the right of the decree holder and that of an auction purchaser, the ratio of the cases which deal with those of the decree holder, cannot be imported in a case where the possession is sought by the auction purchaser who had purchased the property in the custody of the Court through auction where it is incumbent upon the Court to deliver possession to such auction purchaser. Mr. VK. Gupta, on the other hand had relied on the decisions in the case of Niranjan Lal v. District Judge, Bulandshahr and Ors., 1998 (1) A. R. C. 469 and Tamil Nadu Electricity Board and Anr. v. N. Paju Reddiar and Anr., AIR 1997 SC 1005 , in order to contend that the application for restoration is not maintainable since there was two sets of lawyers appearing on behalf of the petitioner. In view of the decision, which I have taken earlier, it is not necessary to go into those questions. 39. MR. Gupta, then relies on the decision in the case of G. H. C. Ariff v. Jadunath Majumdar Bahadur, AIR 1931 PC 79. In the said case, the contract for lease was not sought to be enforced and the specific performance thereof having been barred, the defendant could not have any right. 40. HE also relies on the decision in the case of Behari Lal v. Dharam Vir (dead) by LRs and Anr., 1977 (11) SC679. In the said case, the contract for lease was not sought to be enforced and the specific performance thereof having been barred, the defendant could not have any right. 40. HE also relies on the decision in the case of Behari Lal v. Dharam Vir (dead) by LRs and Anr., 1977 (11) SC679. In the said case, it was held that once an application under Order XXI, Rule 58 was dismissed on default of appearance and the suit against the final order of dismissal filed under Order XXI, Rule 63, after one year of the passing of the said order, was barred under Article 98, further remedy under Order IX, Rule 9, C. P. C. having not been followed within the time stipulated under Article 123, such time barred suit was li able to be dismissed. Drawing anology from the said case, it appears that in the present case it stands on a stronger footing wherein proceedings under Order XXI, Rule 58 and that under Order XXI, Rule 63 were not dismissed on default but on merits. It was held therein that "where the. claim or objection preferred by a party under Order XXI, Rule 58 gets rejected for any reason, an order which is not favourable to him can be said to have come into operation. The only remedy available to him for challenging it is to file a suit and subject to the result of the suit, order passed against him under Order XXI, Rule 58 would become final It cannot, there fore, be said that in order to become opera tive the rejection of the claim under Order XXI, Rule 58 must be based on merits. It is obvious that after the application was made to get the attachment of the property lifted, the Court would proceed to investigate the claim or objection and if the applicant remains absent, the Court could dismiss the objection for default. That. order would remain operative, if not challenged in accordance with law. In the present case the application though was dismissed for default must be said to have 'resulted in an order under Order XXI, Rule 58, C. P. C. against the petitioner. That. order would remain operative, if not challenged in accordance with law. In the present case the application though was dismissed for default must be said to have 'resulted in an order under Order XXI, Rule 58, C. P. C. against the petitioner. It is of course true that if the order is based on merits after adjudicating the claim as per the provisions of Rule 58, Order XXI, a suit can be filed to challenge the order passed on merits. On the other hand, if what was passed on default, the same may be challenged in one year by a substantive suit as laid down by Order XXI, Rule 63, C. P. C. as then operative. But apart from the remedy, further remedy was available to the petitioner to move a petition under Order IX, Rule 9, C. P. C. for getting the order of dismissal for default set aside on making out sufficient cause of his absence. " The present case stands on a stronger footing since in the present case the proceedings under Order XXI, Rule 58 was decided on merits, against which a suit under Order XXI, Rule 63 was filed. It was also decided on merit. So long those orders remain, the petitioner has no right to resist the claim of the auction purchaser. He then relied on the decision in the case of State of U. P. v. District Judge and Ors., AIR 1997 SC 53 , wherein it was held that the right under Section 53-A of the Transfer of Property Act provides a shield or protection to the proposed transferee. The said protection is available only when the transferee satisfies the conditions laid down in Section 53-A. The protection is available as a shield certainly only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees, who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor, who remains full owner of the said land till the title is legally conveyed by sale deed to the proposed transferees. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party like the State when it seeks to enforce the provisions of the Act against the tenure-holder proposed transferor of these lands. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party like the State when it seeks to enforce the provisions of the Act against the tenure-holder proposed transferor of these lands. Similarly, in the present case on the anology of the ratio laid down in the case of State of U.P. v. District Judge (supra), it cannot be attracted or enforced against the auction purchaser or the Court, which seeks to put the auction purchaser into possession. The apex Court in paragraph 7 thereof had held that such a right to protect possession against the proposed vendor cannot be pressed into service against a third party when it seeks to en force consequence of the auction sale by the Court itself. 41. HE then relies upon the decision in the case of Smt. Jairaji v. Firm Jagannath Prasad Thekedar and Ors., 1975 ALR 672. In the said case, it was held that if there is some person other than the judgment- debtor who is not his representative and not holding the property on his behalf and who resists or obstructs his possession, there are two remedies open to the auction purchaser, namely, either to bring a regular suit for possession against the per son or to have recourse to speedier remedy by way of application under Order XXI, Rule 97, C. P. C. It is well settled that the auction purchase is not bound to have recourse to the second remedy. If he follows this remedy but unsuccessfully, then his remedy to bring a regular suit is curtained on the expiry of the period of time as prescribed by Article 11-A of the Limitation Act when no through enquiry need be made under Order XXI, Rule 95, But there is nothing under that Rule which prevents the Court from being satisfied on and prima facie evidence whether this other person is holding the property on behalf of the judgment-debtor or in its own right, an application under Rule 97 cannot be made until the decree holder or the auction purchaser has been resisted or obstructed in the delivery of possession. Even under Order XXI, Rule 95, C. P. C. a second writ of pos session can be issued after resistance or obstruction provided the Court in prima facie satisfied that resistance or obstruction has been offered by the person on a ground which is patently without sub stance or whose claim is on the face of it unacceptable and cannot be said to be in good faith. A stranger to a decree for pos session of immovable property cannot approach the Court by means of an application under Section 151 C. P. C. and record his resistance or his obstruction to delivery of possession of the property either to the decree holder or purchaser, as the case may be, before he has been dispossessed. It is also the duty of the executing Court to a satisfy itself on the question whether the claim of the person resisting delivery of possession is prima facie acceptable and bona fide or not. If the court finds that the 'claim of person resiting delivery of possession is acceptable and bona fide, it will refuse to issue second warrant for possession for delivery of possession and it will be for the decree-holder to apply under Order XXI, Rule 97, C. P. C. or to file a regular suit. An executing Court has no power to compel a decree-holder to move an application under Order XXI, Rule 97, C. P. C. If on the other hand the executing Court is satisfied that the claim is prima facie not acceptable and not bona fide, it will be well within its right to issue a second Parwana for delivery of possession. It is not required to make an enquiry of the nature contemplated by Order @1, Rule 97 nor any procedure is prescribed for it. This enquiry will be made only for satisfaction of the Court whether the person to be dispossessed prima facie belongs to the category given under Order XXI, Rule 95, C. P. C. this view was taken by a Single Judge of this Court. After having perused the reasoning given in the said judgment, I do not find any reason to disagree with the same. I have also held hereinbefore almost on the same line. 42. MR. Gupta then relies on the decision in the case of K. S. Vutyanadam. After having perused the reasoning given in the said judgment, I do not find any reason to disagree with the same. I have also held hereinbefore almost on the same line. 42. MR. Gupta then relies on the decision in the case of K. S. Vutyanadam. v. Viaravan, AIR 1997 SC 1751 : 1997 (1) JCLR 723 (SC), wherein total inaction on part of purchaser to enforce specifically the agreement for sale renders the contract unenforceable and thereby takes away the right even where time was not made essence of the contract. In the said case, the delay was only 2½ years on the ground whereof the relief of specific performance was held to be not available to the proposed purchaser. Whereas, in the present case though the alleged agreement was executed in 1962 even till today the petitioner had not taken any steps to en force the said contract. Therefore, it is no more open to her to resist the claim on the basis of acquiring of a right under the alleged contract. The writ petition, therefore, fails and is accordingly dismissed. No order as to costs. 43. BEFORE parting with this matter, I may observe that the property having been purchased sometimes in 1964 despite lapse of long 34 years the auction purchaser has not been able to obtain possession and in one way or the other, the petitioner has prevented the auction purchaser from obtaining possession, in such a situation, learned executing Court is hereby, directed to dispose of the respondent auction purchaser's application for delivery of possession of the property by removing the persons occupying the property and refusing to vacate, in the light of the above observation, within a period of three months from the date, a certified copy of this order is produced before the executing Court, after giving opportunity, of hearing to the parties. Let a copy of this order be issued to the learned Counsel for the parties on payment of usual charges within 7 days. Petition dismissed.