Judgment :- This revision has been directed against the order passed in E.A.No.18 of 2007 in E.P.No.83 of 2003 in O.S.No.457 of 1999 on the file of Additional District and Sessions Judge(Fast Track Court No.V),Coimbatore at Tirupur. E.A.No.18 of 2007 was filed under Order 21 Rule 97,98 and 101 of CPC by the third party in O.S.No.457 of 1999 who is the wife of the first defendant who died pending trial in O.S.No.457 of 1999. 2. O.S.No.457 of 1999 was filed for Specific Performance of Contract by the plaintiff in O.S.No.457 of 1999 under the sale agreement entered into between the first defendant in O.S.No.457 of 1999 and the plaintiff therein under the sale agreement dated 18. 1996. The first defendant remained exparte in the suit. His sons alone were impleaded as D2 and D3 in O.S.No.457 of 1999. 3. The grievance of the petitioner in E.A.No.18 of 2007 is that without impleading her in the array of parties in O.S.No.457 of 1999, the plaintiff has obtained a decree for Specific Performance which will not be binding on her. According to the learned counsel appearing for the revision petitioner/the petitioner in E.A.No.18 of 2007 in E.P.No.83 of 2003 in O.S.No.457 of 1999, as a legally wedded wife of first defendant, the revision petitioner herein as a Clause I heir is entitled to 1/3rd share of self acquired property of the first defendant which is the subject matter of Sale agreement dated 16. 1996. The learned counsel for the revision petitioner would contend that without adjudicating upon the questions or rights of the revision petitioner herein/the petitioner in E.A.No.18 of 2007, the learned Additional District and Sessions Judge(Fast Track Court No.V) had dismissed her application in E.A.No.18 of 2007 which necessitated the petitioner in E.A.No.18 of 2007 to come to this Court by way of this revision. 4. The learned counsel appearing for the revision petitioner would contend that the learned Additional District and Sessions Judge(Fast Track Court No.V) Coimbatore at Tirupur after coming to a conclusion that the revision petitioner herein is entitled to 1/3rd share in the suit property after the death of her husband viz., the first defendant in O.S.No.457 of 1999, while pending suit. Since she has filed a suit in O.S.No.458 of 2006 she can agitate her right in the said suit, had dismissed her petition. 5. Since she has filed a suit in O.S.No.458 of 2006 she can agitate her right in the said suit, had dismissed her petition. 5. The learned counsel appearing for the revision petitioner relying on a decision reported in Noorduddin-v- Dr.K.L.Anand (1995) 1 Supreme Court Cases 242) would contend that in an application filed under Order 21 Rules 97,98,100,101 and 103 CPC as amended by Code of Civil Procedure in the year 1976. It is the duty of the execution Court to adjudicate upon the rights of the parties who come before the executing Court under Order 21Rules 97,98,100 CPC. The short facts of the said ratio are that the appellants father Nanu, Rehmatullah and one Wazu are brothers and their cousins Munshi and Banda who have migrated to Pakistan and their properties were declared as evacuee properties by proceedings dated 13. 1956,by the competent authority had passed an order separating the respective shares held by the evacuees, Munshi and Banda as well as the father of the appellant, Rehmatullah and Wazu and allotted specific items to Nanu and in the auction held on 14. 1967 in respect of evacuee properties, the respondent Dr.K.L.Anand had become the highest bidder and sale certificates issued on 29. 1968. The sale certificate was challenged by Rehmatullah and his brother Wazu in Writ Petition NO.960 of 1969 before the Delhi High Court contending that the property sold pursuant to the declaration of those properties being evacuee on 2. 1956 were not, in fact, correct. The said writ petition was dismissed by the learned Single Judge which was confirmed by the learned Division bench in LPA No.95 of 1978 dated 19. 1982. Thereafter Rehmatullah impleaded 5th respondent but no relief sought for against him. In the meanwhile, the respondent filed a suit No.270 of 1970 in the District Munsif Court, Delhi against Rehmatullah and Wazu for possession of the properties. The said suit was dismissed and on appeal the division bench of Delhi High Court, decreed the suit for possession and the decree had become final. In the meanwhile, the respondent filed a suit No.270 of 1970 in the District Munsif Court, Delhi against Rehmatullah and Wazu for possession of the properties. The said suit was dismissed and on appeal the division bench of Delhi High Court, decreed the suit for possession and the decree had become final. The respondent filed execution petition for taking possession of the said properties resisting the execution, the appellant filed an application under Order 21 Rule 97 and 98 r/w 151 of CPC before the executing Court contending that his father and members of his family had not migrated to Pakistan though the custodian had declared certain ancestral properties to be evacuee properties of Munshi and Banda which were sold to the respondent and that the plaintiff Dr.K.L.Anand has obtained collusive decree against others. The executing Court had dismissed the application on the ground that the dispute was adjudicated by the High Court in RFA NO.305 of 1986 and that, therefore, the claim is no longer tenable. On revision in the impugned order dated 17. 1994, the learned Single Judge dismissed the revision holding that the controversy was concluded in W.P.No.960 of 1969 wherein the appellants father was arrayed as respondent and that, therefore, he cannot make the objections. While disposing of appeal in favour of the appellant, the Honourable Apex Court has laid down the guide lines for disposing a petition under Order 21 Rules 97,98,100 ,101,103 and 104 CPC which are as follows: "The question, therefore, is whether the executing Court and the High Court had properly appreciated the scheme under Order 21 Rule 97 and declined to entertain and adjudicate the claim of the appellant. Order 21,Rules 97,98,100,101,103 and 104 provide thus:- 97. Resistance or obstruction to possession of immovable property:- (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree 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. (2) Where any application is made under sub rule(1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 98. (2) Where any application is made under sub rule(1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 98. Orders after adjudication:- (1) Upon the determination of the questions referred to in Rule 101, the court shall, in accordance with such determination and subject to the provisions of sub-rule(2):- (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, 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 or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the Judgment-debtor or any person acting at his instigation or on his behalf, to be detailed in the civil prison for a term which may extend to thirty days. 100. Order to be passed upon application complaining of dispossession:- Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination,- (a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other order as, in the circumstances of the case, it may deem fit. 101. Question to be determined.-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 , shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. 103. 103. Orders to be treated as decrees;_ Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereupon shall have the same force and be subject to the same conditions as to an appeal or otherwise as is if it were a decree 104. Order under Rule 101 or Rule 103 to be subject to the result of pending suit:-Every order made under Rule 101 or Rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property." Thus , the scheme of the Code clearly adumbrates that when an application has been made under Order 21 Rule 97, the Court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976,right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution. Adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the Court or miscarriage of justice. The object of law is to mete out justice,. Right to Right, title or interest of a party in the immovable property is a substantive right. Adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the Court or miscarriage of justice. The object of law is to mete out justice,. Right to Right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and Courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almameter(sic) for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the Court to subvert justice. . . . . . .. .. . .. The question is whether the executing Court was right in dismissing the application on the ground that the dispute was adjudicated in RFA NO.305 of 1986 or as held by the High Court that the dispute was decided in the writ proceedings referred to earlier. The execution Court is enjoined to adjudicate the claim or the objection or the claim to resistance. 6. For the same proposition of law, the learned counsel appearing for the revision petitioner would also rely on a decision reported in Brahmdeo Chaudhary-v- Rishikesh Prasad Jaiswal (1997(3) Supreme Court Cases 694) wherein the relevant observation for deciding this revision runs as follows: "On the undisputed facts on record it has, therefore, to be held that because of the resistance or obstruction offered by the appellant, amongst others, on 24. 1991 the application moved by the respondent decree holder on 5. 1991 was necessarily to be one falling within the scope and ambit of Order 21 Rule 97. It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by order 21, Rule 97 CPC could have been offered by any person. 1991 the application moved by the respondent decree holder on 5. 1991 was necessarily to be one falling within the scope and ambit of Order 21 Rule 97. It is pertinent to note that the resistance and/or obstruction to possession of immovable property as contemplated by order 21, Rule 97 CPC could have been offered by any person. The words" any person" as contemplated by Order 21, Rule 97, sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would therefore, be total strangers to the decree. It is not in dispute between the parties that no decree for possession has been obtained by respondent 1 against the appellant.". . . . . . .. A conjoint reading of Order 21, Rules 97,98, 99 and 101 projects the following picture. (1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21,Rule 97,sub-rule(2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the Judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule(2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate Court against such deemed decree." 7. The same ratio decidenti has been reiterated in Shreenath-v- Rajesh (1998)4 Supreme Court Cases 543) as follows: "Under sub-clause (1) Order 21 Rule 35, the executing Court delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The same ratio decidenti has been reiterated in Shreenath-v- Rajesh (1998)4 Supreme Court Cases 543) as follows: "Under sub-clause (1) Order 21 Rule 35, the executing Court delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. The significant words are by removing any person bound by the decree. Order 21 Rule 36 conceives of immovable property when in occupancy of a tenant or other person not bound by the decree, the Court delivers possession by fixing a copy of the warrant in some conspicuous place of the said property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place, the substance of the decree in regard to the property. In other words, the decree-holder gets the symbolic possession. Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by “any person". This may be either by the person bound by the decree, claiming title through the Judgment-debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger.. . . . . Sub-clause (2) after 1976 substitution empowers the executing Courts when such claim is made to proceed to adjudicate upon the applicants claim in accordance with the provisions contained hereinafter. This refers to Order 21 Rule 101 (as amended by 1976 Act) under which all questions relat6ing to right, title, or interest in the property arising between the parties under Order 21 Rule 97 or Rule 99 shall be determined by the Court and not by a separate suit." 8. The effect of an exparte decree against the defendants without bringing the heirs of the deceased defendant on record and without applying for and obtaining exemption under Order 22 Rule 4(4) is dealt with by the learned Judge of this court in Elisa -v-A.Doss( AIR 1992 Madras 159) as follows: "The language of O.22.R.4(4) Civil P.C. Is clear enough to show that the Court must pass an order exempting the plaintiff from the necessity substituting the legal representatives of a deceased defendant who has died after the institution of the suit. It is not necessary for the plaintiff to file a written application asking for such exemption and the rule does not require one. Under the said rule the Court must apply its mind, and think it fit, on the facts and circumstances of the case to grant the exemption. The relevant portion of O.22, R.4(4) reads that the court may exempt the plaintiff and "judgment in such case be pronounced". That part of the sub-rule says that the order of exemption should precede the Judgment to be pronounced in the suit Otherwise the decree against the dead defendant will be a nullity and such a decree cannot be executed against the legal representatives of the deceased defendant." 9. There is no material placed before this Court to show that after the death of the first defendant who remained exparte , an exemption was obtained by the plaintiff under Order 22 Rule4(4) CPC from impleading the other legal representatives of the deceased first defendant under law. After the death of the first defendant, in respect of self acquired property when the suit was pending, the revision petitioner as a legally wedded wife of the deceased first defendant is entitled to a share in the self acquired property of the deceased first defendant which is the subject matter of the suit. 10. The learned counsel appearing for the respondents relying on a decision reported in Mumtaj Begum-vs-Mukkan Chand Bodra(2005)2 TLNJ 276) would contend that in a suit for Specific Performance of agreement of sale, an exparte decree was passed and thereafter the first defendant died and to execute the decree, the plaintiff filed the execution petition for execution of the sale deed impleading some of the legal representatives of the deceased first defendant who would contend that the execution proceedings without disclosing the existence of the daughter is invalid under law. The short facts of the said case are the revision petitioner claimed that she is one of the daughters of Mohammed Salih, the first defendant in the suit and after his death, she was not made as a party in the suit, which was filed for Specific Performance of an agreement for sale against Mohammed Salih, Ummal Bajria and Mohamuda Bivi, the defendants and which was decreed exparte on 17. 1990. 1990. The revision petitioner came to know that the legal representatives of the third defendant Mohamuda Bivi have been added in E.P.No.28 of 1991 as per the order in E.A.No.379 of 1991 as respondents 4 and 5. The revision petitioner also came to know that respondents 6 to 12 have been added as the legal representatives of the first defendant Mohammed Salih in E.P.No.28 of 1991 as per the order in E.A.No.52 of 1994. The sale deed was executed in E.P.No.44 of 1996. During the pendency of the suit, the third defendant Mohamuda Bivi died on 3. 1990 and by suppressing the same, exparte decree was obtained on 17. 1990. Inasmuch as the legal representatives of Mohamuda Bivi have not been added within ninety days, the suit against the third defendant Mohamuda Bivi was abated and therefore, the exparte decree dated 17. 1990 is not valid in law. Respondents 2,4,5 and 10 to 12 were given up at the execution stage. By speaking all these, the revision petitioner filed the petition in E.A.No.265 of 2001 under Section 47 of Civil Procedure Code, which is the subject matter of this revision. The said application was opposed by the decree-holder on the ground that the Specific Performance of agreement for sale as per the agreement entered into between him and the first defendant, a sum of Rs.50,000/-was paid as advance and the balance amount of Rs.25,000/- out of the entire sale consideration of Rs.75,000/-was deposited in the Court. The suit was decreed and the execution petition was filed only after the death of the first defendant and his legal representatives were added as respondents 6 to 12, who contested the execution petition, in which no ground was made that the revision petitioner was not made as a party and she is also one of the daughters of Mohammed Salih. Thereafter, a sale deed was executed on 22. 1997 by the Executing Court. All the proceedings were resisted by respondents 2 to 5.Now the execution petition was filed for delivery of possession, in which also respondents 2 to 5 have not made any objection for not impleading the revision petitioner. Thereafter, a sale deed was executed on 22. 1997 by the Executing Court. All the proceedings were resisted by respondents 2 to 5.Now the execution petition was filed for delivery of possession, in which also respondents 2 to 5 have not made any objection for not impleading the revision petitioner. If the revision petition is also one of the legal representatives, at best, she is only entitled to her share in the balance of sale consideration viz., Rs.25,000/- deposited in the Court, as the first defendant had already received Rs.50,000/- as advance out of the sale consideration of Rs.75,000/- at the time of execution of the agreement for sale. Relying on the above said observation in the Judgement, the learned counsel appearing for the respondents would contend that if at all the revision petitioner is entitled to any right in her deceaseds father (first defendant) property, she cannot claim any share in the property but she can only claim a right in part of the sale consideration. i.e., Rs 10,000/- which was deposited in the Court. 11. The other dictum relied on by the learned counsel appearing for the respondents in Pathuma Beevi(died) and another-v-Pathamuthu Joharan( 1991 (1) M.L.J 322 ) in my view is not applicable to the present facts of the case because the said case had arisen under Section 18 of the Pondicherry Buildings (Lease and Rent Control Act) wherein only the question to be gone into is whether there was any landlord and tenant relationship existed between the parties. 12. The learned counsel appearing for the respondents relying on a decision reported in Collector of 24 Parganas-v- Lalith Mohan Mullick(AIR 1988 Supreme Court 2121) would contend that since sufficient legal representatives have already been represented in the suit for the deceased first defendant, there is no need for the plaintiff to implead the wife of the first defendant in the suit. The relevant observation in the said order passed in the review petition runs as follows: "This review petition has been instituted on the plea that original respondent No.2 Smt.Sibadasi Mullick, widow of Shri Krishna Mohan Mullick had died during the pendency of the appeal in this Court and that original respondent No.5, Smt.Kamalini Mullick, widow of Shri Khirode Mohan Mullick had also died during the pendency of the appeal in this Court which was disposed of on merits by a Judgment and order dated February 13,1986(reported in A.I.R.1986 SC 622) after hearing the parties. So far as Smt.Sibadasi Mullick, widow of Shri Krishnna Mohan Mullick is concerned, her two sons viz., Lakshmi Kanto Mullick and Nikanto Mullick were already on record as respondents Nos. 3 and 4. Therefore, the estate of the deceased was sufficiently represented before this Court. So far as respondent No.5 Smt.Kamalini Mullick, widow of Shri Khirode Mohan Mullick is concerned, her son Ramendra Mullick was already on record as respondent No.6. In her case also the estate was sufficiently represented. Under the circumstances, it is not possible to uphold the plea that the appeal had abated and the Judgment on merits rendered by this Court on February 13,1986 requires to be s et aside on this ground." 13. It is pertinent to note in the said ratio that only pending appeal in the Supreme Court some of the respondents died and their estate further been sufficiently represented. But now in the case on hand, the first defendant remained exparte in the suit and before disposal of the suit, he died and only his two sons were in the array of parties. Now the present application under Order 21 Rule 97,98,100 CPC was filed by the wife of the deceased first defendant who is admittedly entitled to a share under Section 8 of the Hindu Succession Act 1956 (as Clause I Heir). The two sons of the deceased first defendant cannot represent the interest of their mother who is the wife of the deceased first defendant. Under such circumstances, it cannot be stated that the deceased estate was sufficiently been represented in the absence of the revision petitioner being shown in the array of parties in the suit. 14. The two sons of the deceased first defendant cannot represent the interest of their mother who is the wife of the deceased first defendant. Under such circumstances, it cannot be stated that the deceased estate was sufficiently been represented in the absence of the revision petitioner being shown in the array of parties in the suit. 14. The learned counsel appearing for the respondents would contend that under Article 227 of the Constitution, if this Court comes to a conclusion that the revision petitioner is entitled to any right her right may be decided here itself instead of remanding to the Court below. But the civil revision has been filed under Section 115 of CPC and not Article 227 of the Constitution. If the right of the revision petitioner is decided here itself, then the right of appeal to either parties will be taken way. So the proper course, according to me is to remand the matter to the learned Additional District and Sessions Judge(Fast Track Court No.V) Coimbatore at Tirupur to decide the rights of the revision petitioner in E.A.No.18 of 2007 in E.P.No.83 of 2003 in O.S.No.457 of 1999. 15. In fine, the civil revision petition is allowed and the order passed by the learned Additional District and Sessions Judge (Fast Track Court No.V) Coimbatore at Tirupur in E.A.No.18 of 2007 in E.P.No.83 of 2003 in O.S.No.457 of 1999 is hereby set aside and the matter is remanded to the Court below for considering the right of the revision petitioner in E.A.No.18 of 2007 itself. The learned Additional District and Sessions Judge (Fast Track Court No.V) Coimbatore at Tirupur need not be carried away by any of the observations made by this Court in this order, while disposing of E.A.No.18 of 2007. The learned Additional District and Sessions Judge (Fast Track Court No.V) Coimbatore at Tirupur is directed to dispose of E.A.No.18 of 2007 in E.P.No.83 of 2003 in O.S.No.457 of 1999 within four weeks from the date of reopening i.e., on or before 7. 2008. The parties are directed to bear their own costs. Consequently, connected M.P.Nos.1 and 2 of 2008 are closed.