Judgment K.A. Puj, J.—The petitioners have filed this petition under Article 227 of the Constitution of India praying for quashing and setting aside the order dated 6.8.1997 of issuing possession and jungam warrant in the name of Amratlal Dayaram, a dead person, in Execution Petition No. 19 of 1997 and also the order passed by the learned Extra Assistant Judge on 30.8.2003 in Civil Revision Application No. 11 of 1997. 2. This Court has issued notice on 26.12.2003. At the time of issuance of notice this Court has observed that even for the sake of arguments it is accepted that the day on which the execution petition against the judgment debtor was filed he was no more, but undisputedly, it is on record that on the date of decree, he was very well there. The death certificate produced by the petitioners on record confirms this fact situation. The learned Judge passed order of issuance of summons in the year 1997 and said order was challenged before the revisional authority under Section 29(3) of Bombay Rent Act in the year 1997 itself. The grievance of the petitioners is that vide order dated 30.8.2003, learned Extra Asstt. Judge, Surat has dismissed the Revision Application, but he ought to have held that the order of issuance of warrant is bad-in-law. Without entering into the merits of the contentions raised in the petition the Court has issued notice to the other side. The Court has also observed in the order on the basis of submission made by the learned Advocate appearing for the petitioner that possession was taken over by the respondents / ori. plaintiffs under the execution of warrant issued by the Court, but the other side should be prevented from demolishing the entire structure or from transferring it to any third party at least till the returnable date. The Court, therefore, directed the respondents to maintain status-quo as on that day i.e. 26.12.2003 qua the property in question which was in possession of the petitioner in the capacity of tenant till the returnable date. 3. The Court, thereafter, admitted the petition and issued rule. However, it was observed that since the possession has already been taken in August, 1997 no case was made out for stay and hence interim relief was refused. 4. It is in the above background of the matter, the petition is taken up for final hearing. 5. 3. The Court, thereafter, admitted the petition and issued rule. However, it was observed that since the possession has already been taken in August, 1997 no case was made out for stay and hence interim relief was refused. 4. It is in the above background of the matter, the petition is taken up for final hearing. 5. It is the case of the petitioner that the petitioners are sons of the deceased Amratlal Dayaram. The respondents are sons of the deceased Vrajlal Umedram Chevli. The respondents are ori. plaintiffs No. 2 and 3 in Small Causes Suit No. 134 of 1982 which has disposed of by the learned Additional Small Cause Judge, Surat on 6.11.1996. The deceased Vrajlal Umedram Chevli was plaintiff No. 1. The deceased Amrutlal Dayaram, father of the petitioners, was the sole defendant in the said suit. The prayer made by the plaintiffs in the plaint is pertaining to the eviction and possession of the open land admeasuring 139 sq.mtrs. bearing Nondh No. 1414 ward No. 4 situated in Begumpura area, Nirvana Akhada in the Surat city, on the ground of non-payment of rent, non-user of the said land and bonafide and reasonable requirement of the plaintiffs. The learned Additional Small Causes Court Judge, Surat decreed the suit in favour of the plaintiffs only on the ground that the plaintiffs required the possession of the suit premises reasonably and bonafide for their personal use and occupation. Though the defendant had filed written statement, there was no cross-examination of the plaintiffs on behalf of the defendant. The learned Judge has observed in his order that the defendant has failed to enter into the witness-box for the reasons best known to him. The learned Judge, therefore, passed an order directing the defendant to hand over the possession of open land after six months from the date of the decree. 6. It is also the case of the petitioners that the defendant in the suit died on 20.3.1997. The plaintiffs No. 2 and 3 filed Execution Petition No. 19 of 1997 against the deceased Amratlal Dayaram on 7.8.1997 before the Small Cause Judge, Surat with two prayers to receive the possession of the property and to recover Rs.3315.65 from the deceased Amratlal Dayaram. The plaintiffs No. 2 and 3 filed Execution Petition No. 19 of 1997 against the deceased Amratlal Dayaram on 7.8.1997 before the Small Cause Judge, Surat with two prayers to receive the possession of the property and to recover Rs.3315.65 from the deceased Amratlal Dayaram. Since the Execution Petition was filed within the period of two years from the date of decree the learned trial Judge has issued possession warrant under Order-21 Rule-35 and jungam warrant for recovery of decreetal amount was issued on payment of process fees. The matter was made returnable on 19.8.1997. On the strength of this possession warrant, the petitioners who are not parties either to the suit or execution petition were dispossessed and deprived from their legal possession of the suit property and the respondents are put in the possession of the same. The petitioners alongwith their mother Ramanben preferred Civil Revision Application No. 11 of 1997 in the District Court at Surat and also presented an application to condone the delay being Misc. Civil Application No. 78 of 1997 alongwith the said Revision Application. In the Revision Application, the petitioners had taken the specific stand that when the execution petition was filed on 6.8.1997, their father, the original defendant Amratlal Dayaram was not alive. Though they are the legal representatives of the deceased Amratlal Dayaram, before issuing possession warrant no notice under Order 21 Rule 22 was issued on them. It is also alleged that the respondent had suppressed the facts deliberately before the Court that the original defendant Amratlal Dayaram expired on 19.3.1997 and with deliberate intention the execution petition was filed against the dead person without impleading the heirs of the deceased defendant, who were not party to the suit. Despite this fact the Revision Application was dismissed on 30.8.2003 by the learned Extra Assistant Judge. 7. Being aggrieved by the said order passed by the Extra Assistant Judge, the present petition is preferred by the petitioners. 8. Ms. Kruti Shah, learned Advocate appearing for the petitioners submitted that the execution petition is presented after the death of the defendant - Amratlal Dayaram. Thus, the respondents have preferred execution petition against the dead person. If a decree holder wishes to execute a decree against the dead judgment debtor, he must apply under Section 50 of Civil Procedure Code and get notice served on the legal heirs of the deceased. Thus, the respondents have preferred execution petition against the dead person. If a decree holder wishes to execute a decree against the dead judgment debtor, he must apply under Section 50 of Civil Procedure Code and get notice served on the legal heirs of the deceased. She has further submitted that Section 50(1) of the C.P.C. stipulates that where a judgment debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. She has further submitted that the expression “may apply” as used under Section 50(1) cannot be considered to mean that the matter of bringing on record the legal representatives of the deceased judgment debtor is left to the discretion of the decree-holder. That expression only indicate that it is for the decree-holder to choose whether he should or should not execute the decree against the legal representative of the deceased judgment debtor. If he wishes to execute the decree against such legal representatives, it is obvious that he has to bring them on record and to proceed with the execution after the issue of notice to them as contemplated by Rule 22 of Order 21 of the Code. The provisions of Rule-22 cannot be taken to control Section 50 of the Code. 9. In support of her submission Ms. Shah relied on the Full Bench Judgment of Madras High Court in the case of Kanchamalai Pathar vs. Ry. Shahaji Rajah Sahib and Others, reported in AIR 1936 Mad. 205. Based on this decision Ms. Shah has submitted that it is settled principle of law that without presenting an application under Section 50 of C.P.C. no decree can be executed against the legal representative of the deceased judgment debtor and in the case of execution of a decree against the legal representative it is compulsory to issue notice to the legal representative under Order-21 Rule-22 of the C.P.C. Since the respondents have not complied with the requirement of Section 50 of the C.P.C. the impugned orders passed by the Courts below are required to be quashed and set aside. 10. Ms. Shah further submitted that the suit property is open land and it was rented to the father of the petitioners, therefore it is most valuable property. 10. Ms. Shah further submitted that the suit property is open land and it was rented to the father of the petitioners, therefore it is most valuable property. The respondents had played fraud and by adopting tactics secured the possession warrant against their father and evicted legal representatives of the judgment debtor. She has, therefore, submitted that this Court should interfere and quash and set aside the order of issuance of possession and jungam warrant in the name of deceased judgment debtor and direct the respondent to hand over back the possession to the petitioner. She has further submitted that it is transpired from the report of the bailiff, who has executed the warrant of possession that the son of the deceased judgment debtor expired before four months. Inspite of this, the bailiff handed over the possession to the decree holder without reporting the facts disclosed by the deceased judgment debtor. It is, therefore, clear that when the possession warrant is executed the suit property was in possession of the deceased judgment debtor. The petitioners are not bound by the decree of the Court as they are not the party in the original suit proceedings as well as in the execution proceedings. She has, therefore, submitted that taking any view of the matter the impugned orders are required to be quashed and set aside. 11. Mr. S.H. Sanjanwala, learned Senior Counsel appears with Mr. R.S. Sanjanwala, for the respondent. An affidavit-in-reply is filed on 30.1.2004. He has strongly opposed the petition by raising preliminary issue about the maintainability of the petition. The petitioners have got alternative remedy by way of proceeding under Order 21 Rule 99 of the Civil Procedure Code and further proceedings can also be taken, which provides right to appeal to judicial forum. Since there is already efficacious remedy available to the petitioners, the learned Assistant Judge has rightly rejected the Revision Application. He has further submitted that the petitioners have no locus standi to file this petition. As a matter of fact, the petitioners have no locus standi even to file Revision Application before the learned Assistant Judge. The premises in question are commercial (business) premises and, therefore, unless and until the claim of tenancy is adjudicated under Section 5(11)(c) of the Rent Act, the writ petition cannot be maintained nor the Revision was maintainable in law. 12. Mr. The premises in question are commercial (business) premises and, therefore, unless and until the claim of tenancy is adjudicated under Section 5(11)(c) of the Rent Act, the writ petition cannot be maintained nor the Revision was maintainable in law. 12. Mr. Sanjanwala submitted that since the learned Assistant Judge has already come to the conclusion that when one revision application against two orders cannot be maintained and on that ground the Revision Application was rejected, again on the same ground and same objection the present writ petition cannot be maintained. 13. Mr. Sanjanwala has further submitted that the learned Assistant Judge has given cogent reasoning as to why the petitioners are not entitled to any relief as claimed for by them. He has submitted that death of deceased was occurred during the pendency of the execution proceedings. However, it was after the suit was decreed. At no point of time the respondents or their advocate were informed about the death of the deceased. While the Darkhast was executed there also no objection was raised on that count and the possession has been handed over. Once warrant is executed and the possession is also given to the decree holder the petitioners now cannot agitate that Darkhast was not filed in accordance with law. He has submitted that all these excuses are taken only with a view to prolong the matter. Even during the pendency of the suit the deceased father never remained present in the Court nor did he give any evidence nor did he seriously contest the matter knowing fully well that he has no case. Therefore, only because some persons have instigated the petitioners, the petitioners have filed Revision Application before the learned Assistant Judge and they are prolonging the matter by filing present writ petition. 14. Mr. Sanjanwala has further submitted that the learned Assistant Judge has rightly come to the conclusion that no notice was issued since Darkhast proceedings were started within two years from the date of the decree. There is no question of violation of provisions of Section 50 of the C.P.C and Order 21 Rule-22 of the same as sought to be submitted by the petitioners. 15. Mr. There is no question of violation of provisions of Section 50 of the C.P.C and Order 21 Rule-22 of the same as sought to be submitted by the petitioners. 15. Mr. Sanjanwala has further submitted that even if it is assumed that the possession is taken from the legal representatives and they have any grievance against the order passed by the Executing Court, the remedy is available to the petitioners to move the Executing Court under Order-21 Rule-99 of the C.P.C., which says that, where any person other than the judgment-debtor is dispossessed of immovable property by the holder or a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. On presenting such application the Executing Court is under an obligation under Rule-100 of the C.P.C to make an order allowing the application and directing that the applicant be put into possession of the property or dismissing the application; or pass such other order as, in the circumstances of the case, it may deem fit. The order passed by the Executing Court under Rule 100 is again an appealable order. Rule-103 says that last orders are to be treated as decrees. It says that, where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. Mr. Sanjanwala has, therefore, submitted that the act of dispossession and/or deprivation of the petitioners from the suit property cannot straightway be challenged before this Court since there is alternative remedy available to the petitioners under Order-21 Rule-99 and, thereafter, under Rule-103 of Order-21 of C.P.C. 16. In support of his submissions Mr. Sanjwanwala has relied on the decision of this Court in the case of Parubai Manilal Brahmin and Others vs. Zaverbhai Tapodhan, reported in 1964 GLR Vol.4 563 (2) Maniben Chhotubhai and Ors. vs. Kacharabhai Bhulabhai, reported in 1974 GLR Vol. XV 209 (3) Ganpat Ladha vs. Sashikant V. Shinde, reported in AIR 1978 SC 955 (4) (Bai) Induben alias Dhanbai vs. Saiyad Mahmad Jiya and Ors., reported in 1985 GLH 138 . 17. vs. Kacharabhai Bhulabhai, reported in 1974 GLR Vol. XV 209 (3) Ganpat Ladha vs. Sashikant V. Shinde, reported in AIR 1978 SC 955 (4) (Bai) Induben alias Dhanbai vs. Saiyad Mahmad Jiya and Ors., reported in 1985 GLH 138 . 17. Having heard learned Advocates appearing for the parties and having considered their rival submissions in light of the statutory provisions and the decided case law on the subject and having gone through the order passed by the learned Extra Assistant District Judge, Surat on 30.8.2003 in Civil Revision Application No. 11 of 1997 and also having gone through the possession warrant and jungam warrant issued by the learned Civil Judge, Surat on 6.8.1997, the Court is of the view that the petitioners being the legal representatives of the deceased have challenged the above two orders in the present petition which is not permissible in law. Even otherwise, the judgment and decree passed by the learned Additional Small Causes Court, Surat in Small Causes Civil Suit No. 134 of 1982 on 6.11.1996 was challenged by the petitioners in Civil Revision under Section 29(3) of the Rent Control Act, instead of challenging the same by way of an appeal under Section 29(1) of the said Act. Under Section 29(1) an appeal is provided to the District Court if the property is situated at the place other than City of Ahmedabad. The petitioners have challenged both the orders in Revision Application and precisely for this reason the learned Extra Assistant District Judge, Surat has rightly come to the conclusion that the Revision Application preferred by the petitioners under Section 29(3) of the Bombay Rent Control Act is not maintainable. So far as challenge to the issuance of possession warrant as well as jungam warrant is concerned, the learned District Judge has come to the conclusion that the deceased Amrutlal Dayaram expired after the judgment and decree was passed and if the possession is taken from the legal heirs they have got the remedy under Order-21 Rule-22 as well as under Order-21 Rule-99 of the C.P.C. The ground which is raised before the Court on the basis of Section 50 (1) of the C.P.C. has not been raised before the learned District Judge. However, this being a legal ground the Court has certainly gone into the merits of the said ground. 18. However, this being a legal ground the Court has certainly gone into the merits of the said ground. 18. Section 50 of C.P.C. says that where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. This section casts a duty on the decree holder to make an application to the Executing Court to allow him to execute decree against the legal representative of the deceased. However, the question arises as to whether the decree holder is aware about the death of the judgment-debtor. There is nothing on record which indicates that the decree holder was aware about the death of the judgment-debtor at the time when the execution petition was filed or at the time when the order regarding issuance of possession warrant and jungam warrant was obtained. It appears from the bailiff report that these facts came to the light only when the possession warrant was sought to be executed. There is a reference in the bailiff report that the Petitioner No. 2 has informed the bailiff that his father expired four months back. The baillif’s report, however, indicates that there was no protest from any one even from the Petitioner No. 2 while the decree was sought to be executed. On the contrary, the baillif report indicates that the plaintiffs i.e. present respondents have taken the possession of the suit property without any objection and without any dispute. Not only that the petitioner has made an endorsement to the effect that he has received old plastic tank. This observation from the baillif report supports the case of the respondent that only because some persons have instigated the petitioners, the petitioners have filed Revision Application before the learned Assistant Judge and they are prolonging the matter by filing the present writ petition. Even otherwise Section 50 can be invoked only when the decree is sought to be executed against the legal representative of the deceased. The facts found on record cannot indicate that the decree was sought to be executed against the legal representative of the decease. Even if it is assumed that the decree is sought to be executed against the legal representative of the deceased under Order-21 Rule-99, the petitioners have got an alternative remedy. The facts found on record cannot indicate that the decree was sought to be executed against the legal representative of the decease. Even if it is assumed that the decree is sought to be executed against the legal representative of the deceased under Order-21 Rule-99, the petitioners have got an alternative remedy. Rule-99 states that where any other person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. Here in the present case the petitioners are the persons other than the judgment-debtor and according to their submissions if they are dispossessed of immovable property by the respondents in that case they have to make application to the Executing Court complaining of such dispossession. Instead of doing that they have initially filed Revision Application under Section 29(3) of the Rent Control Act and, thereafter, the present petition was filed before this Court. Once such an application is moved to the Executing Court Rule-100 casts an obligation to the Executing Court to decide such an application either by directing that the applicant be put into possession of the property or by dismissing the application. Even the order passed by the Executing Court under Rule-100 of Order-21 of the C.P.C. is appealable order under Section 103 of Order-21 of C.P.C. which says that where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. Instead of undergoing this process, the petitioners have adopted a short-cut and straightway filed petition before this Court mainly on the basis of provisions contained in Section 50 of the C.P.C. However, Section 50 would not come to the rescue of the petitioners. 19. In view of the above facts and circumstances of the case, the Court does not see any substance in the present petition and the relief claimed for and the prayers made by the petitioner in this petition cannot be granted. 19. In view of the above facts and circumstances of the case, the Court does not see any substance in the present petition and the relief claimed for and the prayers made by the petitioner in this petition cannot be granted. It is, however, open for the petitioners to take recourse to the provisions contained in Order-21 Rule-99 of the C.P.C. When such an application is moved by the petitioners before the Executing Court, the same shall be decided in accordance with law. It is also made clear that unless and until the main decree passed by the learned Civil Judge (S.D.) Surat is challenged and the same is not upset by the Competent Court it is very difficult for the petitioners to get any relief against dispossession. 20. With these observations and clarifications the petition is dismissed. Rule is discharged without any order as to costs. P P P P P