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2010 DIGILAW 836 (RAJ)

VIKRAM SINGH v. PRASHANT SINHA

2010-04-13

MAHESH CHANDRA SHARMA

body2010
SHARMA,J. ( 1 ) THIS civil first appeal has been filed under Section 96 read with Order 21 Rule 103 CPC, against the order dated 15. 9. 2003 passed by Additional District Judge No. 1 Jaipur City Jaipur in Civil Execution Misc. Appl. No. 97 of 1999 whereby the appellant Vikram Singh's (in short "the objector") application filed under Order 21 Rule 97 was rejected. Brief facts of the case as stated in the appeal are that on May 13, 1979 the objector took possession of four shops and open land appurtenant to them situated on Chomu Road, Jaipur on monthly rent of Rs. 110/- from the respondent No. 1 Prashant Sinha (in short "the decree holder") and started his sanitary and hardware business. According to the objector the tenancy was verbal. The objector stated that the land lord dishonestly started taking steps in collusion with the Jaipur development Authority in 1986 to dispossess the objector from the tenanted premises and the objector felt compelled to file a suit for permanent injunction on April 24, 1986 (No 395/86) against the landlord and the Jaipur Development Authority which was eventually decreed in favour of the objector on 5. 9. 1995 and the landlord was permanently restrained from dispossessing the tenant-objector from disputed premises except in due process of law. ( 2 ) DURING the pendency of the above suit (No. 395/86) the decree holder filed a collusive eviction suit No. 208/86 against ghost tenant Ramavtar (respondent No. 2 herein) on 4. 8. 1986 on the ground of default and sub-tenancy and secured exparte decree on May 26, 1990. According to the objector he was not a party in this suit. Thereafter the landlord filed an execution of his eviction decree obtained against ghost tenant Ramavtar and tried to dispossess the objector. Thereafter the objector has filed another suit no. 131/94 and obtained temporary injunction on October 29, 1994 restraining the land lord Prashant Sinha from dispossessing the objector from the suit premises. The land lord decree holder stub-bornly insisted to dispossess the objector from the suit premises in execution of eviction decree obtained against the respondent No. 2 Ramavtar (in short judgment debtor) and therefore the objector filed an application under Order 21 Rule 97 CPC on september 23, 1999 before the executing court. The land lord decree holder stub-bornly insisted to dispossess the objector from the suit premises in execution of eviction decree obtained against the respondent No. 2 Ramavtar (in short judgment debtor) and therefore the objector filed an application under Order 21 Rule 97 CPC on september 23, 1999 before the executing court. The decree holder contested the application and he stated that the suit shops and appurtenant open land were given on rent to respondent No. 2 Ramavtar and the objector was sub-tenant of Ramavtar and he did not come forward to oppose the application. The executing court framed two issues. Both the parties led oral and documentary evidence. After hearing arguments the executing court decided issues in favour of the decree holder and against the objector and dismissed the application on September 15, 2003. Against the order dated September 15, 2003 the objector filed a revision petition No. 859/2003 before this Court and the same was withdrawn on May 28, 2004. Thereafter the objector filed S. B. Civil Writ Petition No. 3551/2004 but same was also dismissed on 22. 11. 2004. Thereafter the objector filed this appeal under Order 21 Rule 103 CPC, against the order rejecting his objections under Order 21 Rule 97 CPC. ( 3 ) THE learned counsel for the objector argued that Order 21 Rule 97 CPC provides that where the holder of a decree for possession of immovable property is resisted or obstructed by any person other than the judgment debtor in obtaining possession of the property then the decree holder may make an application to the Court complaining of such resistance or obstruc-tion. The learned counsel stated that in the present case resistance and obstruction was made by the objector, the decree holder stubbornly persisted in getting the warrant of possession executed through police help although the law laid down by the Apex Court is that if there is obstruction raised by a person other than the judgment debtor within the knowledge of executing court then the court can not re-issue warrant of possession with police assistance and the decree holder is expected to make first an application complaining of such resistance or obstruction for investigation. The executing court shall than adjudicate the matter under Order 21 Rule 98 CPC and if it comes to the conclusion that the resistance or obstruction was raised by the judgment debtor or by any body else on behalf of the judgment debtor, then the above warrant of possession shall be issued and the person in possession shall be forcibly dispossessed. The learned counsel argued that in the instant case the decree for possession was against one Ramavtar and not against vikram Singh objector. Resistance and obstruction was raised by Vikram singh. The decree holder in place of moving an application under Order 21 rule 97 CPC insisted in getting the warrant of possession issued and executed with police help against Vikram Singh and in the circumstances Vikram Singh was left with no option but to move an application to the executing court on 23. 3. 1999, which has given rise to this appeal. Reliance was placed on brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another (AIR 1997 SC page 856) and Bhanwar Lal vs. Satya Narain ( AIR 1995 SC 358 ). ( 4 ) REITERATING the facts mentioned above the learned counsel argued that the fact of filing civil suit No. 395/86) on 24. 4. 1986 by the objector for permanent injunction against decree holder and JDA was in the knowledge of the decree holder when he filed the suit No. 208/86 against the ghost tenant ramavtar. The civil suit No. 395/86 was decreed in favour of the objector on 5. 9. 1995 whereas in suit No. 208/86 filed by the decree holder the trial Court granted exparte decree on 26. 5. 1990. Resistance and obstruction raised by vikram Singh objector was well within the knowledge of decree holder prasant Sinha. In the suit of eviction it was pleaded that the tenancy was verbal at the rate of Rs. 900 per month objector was not a party in this suit although he was admittedly in possession of the suit property within the knowledge of Prashant Sinha. It was pleaded in the suit that Vikram Singh was sub tenant of Ramavtar and yet he was not impleaded. The objector filed another suit No. 131/94 on 4. 7. 1994 and obtained temporary injunction on 29. 10. 1994 restraining the landlord Prashant Sinha from dispossessing the objector from the suit premises. It was pleaded in the suit that Vikram Singh was sub tenant of Ramavtar and yet he was not impleaded. The objector filed another suit No. 131/94 on 4. 7. 1994 and obtained temporary injunction on 29. 10. 1994 restraining the landlord Prashant Sinha from dispossessing the objector from the suit premises. In these circumstances the objector filed an application under Order 21 Rule 97 CPC on 23. 9. 1999 before the executing court as the landlord decree holder insisted to dispossess the objector from the suit premises in execution of eviction decree obtained against Ramavtar. The learned counsel made stress that the real scope of dispute in this case is whether the possession of Vikram Singh was as sub tenant of Ramavtar or independent of sub tenancy. The learned counsel further argued that the impugned order is erroneous and it has not been considered that Vikram singh is sub tenant of Ramavtar. Neither Ramavtar entered in the witness box nor he has been examined by the decree holder. The decree holder has not led any evidence to show that Vikram Singh was sub tenant of Ramavtar. It is submitted that the decree holder has not proceeded against him for recovery of due rent of 25 years at the rate of Rs. 900/- per month which exceeds Rs. 2,50,000/ -. On the other hand on the request of the objector under orders of the Court he has accepted rent of 25 years at the rate of Rs. 900 per month from Vikram Singh and rent as damages at the rate of Rs. 20,000/- per month were deposited in the High Court since 2005 by Vikram Singh. It is further argued that Vikram Singh objector is in effective and settled possession of the disputed property since 1979. The objector is in peaceful possession. The executing court has not held that Vikram Singh is sub tenant of Ramavtar. The learned counsel made stress that in the circumstances possession of the objector should be protected even if he is considered to be trespasser and he is not liable to be dispossessed in execution of a decree passed against ramavtar because Vikram Singh is not his sub tenant and has not been held to be claiming through or on behalf of Ramavtar judgment debtor. The decree holder should first file title suit and obtain possession from Vikram Singh. The decree holder should first file title suit and obtain possession from Vikram Singh. In this connection reliance has been placed on AIR 2004 SC 4609 . Lastly the learned counsel argued that there is a temporary injunction dated 29. 10. 1994 against the decree holder. This order was not challenged in appeal by him and therefore it has become final. Pending this suit the decree holder is not entitled to obtain possession of the premises from the objector. The application has been rejected by the executing court without holding enquiry under Order 21 Rule 98 (2) CPC that Vikram Singh was claiming possession through or on behalf of judgment debtor Ramavtar, sub tenant, the impugned order may be set aside. ( 5 ) THE decree holder Prasant Sinha through his advocate also filed written submissions. In the written submissions he reiterated the facts stated in the order dated 15. 9. 2003 passed by the executing court and stated that the executing court after taking into consideration the application under Order 21 rule 97 CPC, evidence produced by the parties and various documents produced by the parties, dismissed the application filed by the objector vikram Singh by a reasoned order. The order passed by the executing court is just and proper and the appeal against the said order filed by the objector is liable to be rejected. The reasons given by the executing court rejecting the application filed by the objector Vikram Singh are just and proper. The claim made by the objector that he was tenant of the decree holder was rejected. The executing court rightly decided the issues in favour of the decree holder and against the objector. The learned counsel in this connection placed reliance on Vaniyankandy Bhaskaran vs. Mooliyil Padinhjarekandy Sheela (2008) 10 SCC 491 , N. S. S. S. Narayana Sarma and others vs. M/s. Goldstone exports (P) Ltd. and others AIR 2002 SC 251 , Biswantah Poddar vs. Archana poddar and another AIR 2001 SC 2849 , Navneet Kumar vs. Mahesh Chand gupta and others (2008 (1) RCR 557 = 2008 (2) RLW 1118 (Raj.), Mangai Achi vs. S. Asokan and another AIR 1973 Madras 258,mst. Budhi vs. Balmukand 1984 RLW 343, Judhistir Jena vs. Surendra mohanty and another (AIR 1969 orissa 233), Babulal Choukh vs. Caltex (India) Ltd. AIR 1967 Calcutta 205, jagdishchandra Chandulal Shah vs. State of Gujarat and others 1989 Cr. Budhi vs. Balmukand 1984 RLW 343, Judhistir Jena vs. Surendra mohanty and another (AIR 1969 orissa 233), Babulal Choukh vs. Caltex (India) Ltd. AIR 1967 Calcutta 205, jagdishchandra Chandulal Shah vs. State of Gujarat and others 1989 Cr. L. J. 1724,n. Palaniappan vs. Pandurangan (AIR 1990 Madras 327), Shreenath and another vs. Rajesh and others (1998) 4 SCC 543 =rlw1998 (2)SC 279, and kailash Chandra vs. Gomand Ram 1961 RLW 395. ( 6 ) I have considered the arguments raised by the learned counsel for the parties and gone through the judgment of the executing court and the relevant record. ( 7 ) BEFORE proceeding further, it would be necessary to have a look at the relevant provisions of Rule 97 of Order 21 CPC, as under: "97. Resistance or obstruction to possession of immovable property,- (1) where the holder of decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed 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. " 1 may in this connection also refer to the Schedule to the CPC, Appendix e which gives various forms for summons to be issued to parties in execution proceedings especially form No. 40 which deals with Summons to appear and answer charge of obstructing execution of decree (0. 21 R. 97 ). ' The said form reads as under:No. 40 Summons to Appear and Answer charge of obstructing execution of Decree (0. 21 R. 97) (Title) whereas, the decree-holder in the above suit, has complained this Court that you have resisted (or obstructed) the officer charged with the execution of the warrant for possession. " you are hereby summoned to appear in this Court on the. . . day of. . . 19. . . , at A. M. , to answer the said complaint. Given under my hand and the seal of the Court, this. . . . . day of 19. . . . Judge. " you are hereby summoned to appear in this Court on the. . . day of. . . 19. . . , at A. M. , to answer the said complaint. Given under my hand and the seal of the Court, this. . . . . day of 19. . . . Judge. " It is, therefore, clear that on an application under Order XXI Rule 97 moved by a decree-holder who complains about the resistance or obstruction offered by any person to the decree-holder in his attempt at obtaining possession of property and who wants such obstruction or resistance to be removed which otherwise is an impediment in his way, a lis arises between the decree holder applicant under Order XXI Rule 97 on the one hand and such obstructionist or resisting party on the other, to whom summons has been issued by the Court as per Form No. 40. When such a lis arises, it has to be adjudicated upon as enjoined by Order XXI Rule 97 sub-rule (2 ). The procedure for adjudicating such a lis has to called out from the remaining succeeding Rules of Order XXI This directly takes me to the consideration of order XXI Rule 101 which reads as under:"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 be 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. " ( 8 ) ON the application filed by the objector Vikram Singh, on 2. 11. 1999, the executing court passed the following order: ( 9 ) PRIOR to passing of the order dated 2. 11. 2009, the decree holder prasant Sinha filed a detailed reply to the application under order 21 Rule 97 cpc refuting the claim of the objector that he has ever given the disputed property on rent to the objector. In reply to para 2 it was stated that Ramavtar was tenant of the decree holder and on 1. 1. 11. 2009, the decree holder prasant Sinha filed a detailed reply to the application under order 21 Rule 97 cpc refuting the claim of the objector that he has ever given the disputed property on rent to the objector. In reply to para 2 it was stated that Ramavtar was tenant of the decree holder and on 1. 1. 1980 four shops were given on rent of Rs. 150/- each and open land was given on a rent of Rs. 300/- total rent was rs. 900 per month. It was submitted by the decree holder that if the objector taken the shops and land on rent as sub-tenant from Ramavtar, this was erroneous in law. The decree holder specifically stated that the shops and open land were given on rent to Ramavtar and hence suit was filed against him in the year 1986. Various other facts were also stated by the decree holder in the reply to the application under Order 21 Rule 97 CPC. The decree holder thereafter submitted application under Order 13 Rule 2 CPC on 24. 11. 2009. The objector filed reply to the application on 25. 11. 1999. Thereafter the objector filed application under Order 11 Rule 14 CPC. Another application under Order 16 Rule 6 CPC was filed by the objector on 27. 3. 2001. The decree holder filed reply to the application under Order 16 Rule 6 CPC on 25. 4. 2001. The objector (hereafter filed application under Order 13 Rule 10 CPC on 4. 9. 2001. The objector filed reply to the application under Order 13 Rule 2 CPC on 7. 9. 2001. The objector in pursuance of the order of the executing court filed surety bond in the amount of Rs. 25,000/- with one surety of Shri Satyanarain pathak on 11. 11. 1999. Thereafter various applications were filed by both the parties. The executing court vide order dated 24. 7. 2001 rejected the application of the objector filed under Section 16 Rule 6 CPC by a detailed order. By order dated 17. 1. 2002 of the executing court the application under order 16 Rule 6 CPC and application under Order 26 Rule 9 CPC were decided and the decree holder was permitted to call record from the Excise department and further Commissioner was appointed to inspect the disputed properties. By order dated 17. 1. 2002 of the executing court the application under order 16 Rule 6 CPC and application under Order 26 Rule 9 CPC were decided and the decree holder was permitted to call record from the Excise department and further Commissioner was appointed to inspect the disputed properties. It may also be mentioned that the objector Vikram Singh filed revision petition No. 140/2000 rejecting the application under Order 11 Rule 14 cpc for production of document. The said revision petition was dismissed by this Court on 23. 1. 2001. It may also be mentioned that against the order dated 15. 9. 2003 the objector filed a revision petition No. 859 of 2003, which was rejected by this Court on May 28, 2004. This Court while dismissing the revision petition granted liberty to the objector to challenge the impugned order in fresh proceedings in accordance with law subject to objection of limitation on behalf of the respondents. The objector also filed S. B. Civil Writ petition No. 3551/2004 but same was also dismissed on 22. 11. 2004. ( 10 ) THE objector in support of his application under Order 21 Rule 97 produced six witnesses AW. l Vikram Singh, AW 2 Sajan Kumar Goyanka, aw. 3 Pokhar Ram, AW. 4 Satyanarain, AW. 5 Anil Bhatia, AW. 6 Daljit Singh and the decree holder in his support produced two witnesses he himself as NAW. l and Bhupendra Sinha as NAW. 2. It may also be mentioned that on the application of the decree holder Shri B. L. Agrawal, Advocate was appointed as commissioner and he submitted his report before the executing court. The objector filed copy of the order of ADJ No. 4 as Ex. 1, copy of the order of Addl. Munsif West Jaipur City, copy of judgment and decree Ex. 4 of Addl. Munsif west Jaipur City Ex. 5, copies of purchase of sanitary items bills Ex. P. 6 to 11, copies of Sale of sanitary items bill Ex. 12 and 13, copies of Paints bill and purchase of other items bills Ex. 14 to Ex. 18, copy of Order of the Munsif East ex. 19, Copy of civil suit Ex. 20, Copy of written statement Ex. 21, Copies of purchase and sale items Ex. 22 to 31. SCCS P. No. Ex. 32, RST No. Ex. 33, copies of Electricity bills Ex. 14 to Ex. 18, copy of Order of the Munsif East ex. 19, Copy of civil suit Ex. 20, Copy of written statement Ex. 21, Copies of purchase and sale items Ex. 22 to 31. SCCS P. No. Ex. 32, RST No. Ex. 33, copies of Electricity bills Ex. 34 and 35, copies of Orders received from companies Ex. 36, Insurance of shop Ex. 34 and 35, copies of Orders received from companies Ex. 36 and Insurance Ex. 37, Money order receipt and coupen ex. 38 and 39. It may be mentioned that the objector has not been able to point out from any document that he is tenant of decree holder. Even the money order receipt and coupen which are Ex. 38 and Ex. 39 are dated 28. 8. 95 for Rs. 1300. It is not borne out from these documents that really the money order sent to Prasant Sinha was for due rent. The coupen did not bear the signature of Prasant Sinha. In these circumstances the money order cannot be said to be a document to show that the money tendered by the objector was in relation to rent due. The electricity bills produced Ex. 34 and Ex. 35 are in the name of Prasant Sinha. These bills relate to the year 1984. Viewed from this angle also it cannot be said that the objector was at any point of time directly tenant of decree holder. The executing court after hearing arguments of both the sides decided issues 1 and 2 against the objector and in favour of the decree holder and rejected the application under Order 21 Rule 97 CPC of the objector filed on 23. 9. 99 vide order dated 15. 9. 2003 mentioned above. ( 11 ) FROM the above facts it is clear that though the decree holder prashant Sinha was admittedly entitled to file application under Order 21 Rule 97 CPC, but in view of the admitted position of both the parties, the application filed by the objector was contested by both the parties. Both the parties did not file any appeal/revision against the order dated 2. 11. 1999 passed by the executing court. They have not raised any objection regarding filing of the application by the objector. Both of them filed various applications and thereafter produced evidence and documents in support of the issues framed by the executing court on 2. Both the parties did not file any appeal/revision against the order dated 2. 11. 1999 passed by the executing court. They have not raised any objection regarding filing of the application by the objector. Both of them filed various applications and thereafter produced evidence and documents in support of the issues framed by the executing court on 2. 11. 1999. The executing court considering the evidence produced by the parties and the documents exhibited in support of the issues, decided both the issues against the objector and in favour of the decree holder. ( 12 ) THIS Court on 24. 5. 2005 after hearing the counsel for both the sides, admitted this appeal and on the stay application passed the following order: "the order of the learned trial Court shall remain stayed subject to the condition that the objector shall deposit in the Court Rs. 20,000/- per month as mesne profit for the use and occupation of the premises in dispute, during the pendency of the appeal. The mesne profit shall be payable from the first of June, 2005 and to be deposited in the court by 7th day of every month by Account Payee Cheque/dd/paya Order, drawn in the name of the Registrar (Administration), Rajasthan High court Bench Jaipur, who, in turn, shall deposit this amount in monthly recurring Deposit Account, to be opened by him in a nationalised bank or post office initially for a period of three years (36 months ). The next condition is that the objector shall furnish an undertaking that in case the decision in the appeal goes adverse to him, he shall hand over the vacant peaceful possession of the premises, in dispute, to the decree holder, within fifteen days after the decision of the appeal and for this he has to execute a surety bond in a sum of Rs. 1,00,000/- (one lac ). Where the objector succeeds in the appeal, he shall be entitled to withdraw the amount so deposited by him with accrued interest thereon. In the case of failure of the objector in the appeal, the decree holder shall be entitled for withdrawal of the amount deposited by the objector as aforesaid with accrued interest thereon. Subject to the terms and conditions aforesaid the stay application stands disposed of. " In compliance of the order of this Court the objector is depositing Rs. In the case of failure of the objector in the appeal, the decree holder shall be entitled for withdrawal of the amount deposited by the objector as aforesaid with accrued interest thereon. Subject to the terms and conditions aforesaid the stay application stands disposed of. " In compliance of the order of this Court the objector is depositing Rs. 20,000/- every month with effect from the date fixed by this Court and also submitted surety bond in the amount of Rs. 1,00,000/- before this Court on 7. 6. 2005 undertaking that in case the appeal goes adverse to him he shall handover the vacant peaceful possession of the premises in dispute to the decree holder within 15 days after the decision of the appeal. ( 13 ) THE ruling cited by the learned counsel for the objector in AIR 1997 sc 856 Brahmedeo Chaudhary vs. Rishikesh Prasad Jaiswal and another was not applicable to the facts of the present case as in that case the objector who claims to be a stranger, occupying decretal premises in his own right and who has offered resistance to the execution of the decree obtained by the decree-holder against the judgment-debtor qua such property requested the executing Court to adjudicate upon his resistance obstruction without being insisted upon that first he must hand over possession and then only move an application under Order XXI Rule 99 Code of Civil Procedure. In the instant case the application was filed by the objector and the trial Court framed the issues and decided the application after recording evidence and considering the documents submitted by the parties. Having filed the application under order XXI Rule 97 CPC, and participated in the proceedings before the executing court, the arguments raised by the learned counsel for the objector at this stage cannot be accepted that it is the decree holder who has to file the application under Order XXI Rule 97 CPC. In the case of Bhanwar Lal vs. Satyanarain and Another (1995) 1 SCC the bench consisting of K. Ramaswamy, S. C. Agrawal, and N. Venkatachala, JJ. , had to consider a parallel fact situation. In that case one Satyanarain had obstructed to the delivery of possession of the suit immovable property which was sought to be obtained in execution by the objector decree holder. , had to consider a parallel fact situation. In that case one Satyanarain had obstructed to the delivery of possession of the suit immovable property which was sought to be obtained in execution by the objector decree holder. After such an obstruction was offered by Satyanarain the decree-holder moved an application under Order XXI Rule 35 for police assistance to remove obstruction caused by Satyanarain. The Executing Court directed the decree-holder to make an application under Order XXI Rule 97. The Apex Court took the view that the very application under Order XXI Rule 35 sub-rule (3) for police assistance for removal of obstruction caused by Satyanarain had to be treated to be an application under Order XXI Rule 97 and such an application was maintainable and could not be said to be beyond limitation. In this connection the Apex Court observed as under: "the crux of the question is whether the application filed on 25-5-1979 by the objector, though purported to be under Order 21. Rule 35 (3)against Satyanarain, is convertible to one under Order 21, Rule 97. Order 21, Rule 35 (3) provides that: "35 (3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession. " A reading of Order 21. Rule 35 (3) postulates that the person in possession of the immovable property to be delivered under the decree must be per force bound by the decree. Admittedly, satyanarain was not a judgment-debtor and that therefore, he is not bound by the decree unless he claims right, title or interest through the judgment-debtor, Ram Kishan, the person resisting delivery of possession. In other words the resistor must claim derivate title from the judgment-debtor. The court gets power under Order 21, Rule 97 to remove such obstruction or resistance and direct its officer to put the decree-holder in possession of the immovable property after conducting enquiry under Rule 97. Order 21, Rule 97 provides thus: 97. In other words the resistor must claim derivate title from the judgment-debtor. The court gets power under Order 21, Rule 97 to remove such obstruction or resistance and direct its officer to put the decree-holder in possession of the immovable property after conducting enquiry under Rule 97. Order 21, Rule 97 provides 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. The procedure has been provided in Rules 98 to 103. We are not, at present, concerned with the question relating to the procedure to be followed and question to be determined under Order 21, Rules 98 to 102. A reading of Order 21, Rule 97 CPC clearly envisages that "any person" even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or set up his own right, title or interest dehors the judgment-debtor and he resists execution of a decree, then the court in addition to the power under rule 35 (3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree-holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done. Each occasion of obstruction or resistance furnishes a cause of action to the decree-holder to make an application for removal of the obstruction or resistance by such person. When the objector had made the application on 25. 5. 1979 against Satyanarain, in law it must be only the application made under Order 21, Rule 97 (1) of CPC. The executing court, obviously, was in error in directing to make a fresh application. It is the duty of the executing court to consider the averments in the petition and consider the scope of the applicability of the relevant rule. 1979 against Satyanarain, in law it must be only the application made under Order 21, Rule 97 (1) of CPC. The executing court, obviously, was in error in directing to make a fresh application. It is the duty of the executing court to consider the averments in the petition and consider the scope of the applicability of the relevant rule. In technical ground the executing court dismissed the second application on limitation and also the third application, on the ground of resjudicata which the High Court has in the revisions now upheld. The procedure is the handmaid of substantive justice but in this case it has ruled the roost. " ( 14 ) AS per the ratio laid down by the Apex Court in Bhanwar Lal vs. Satyanarain (supra) the executing Court has not erred in any manner in deciding the application of the objector filed under Order 21 Rule 97 CPC after framing issues and directing the parties to lead evidence and produce documents in pursuance to the order passed by the executing which was not challenged by both the parties at any stage. Both the parties led evidence and exhibited documents in support of their case. ( 15 ) I have also gone through the findings arrived at by the executing court on the issues framed by it. The findings arrived at by the executing court cannot be said to be perverse. The executing court held that the burden of proving the issues was on the objector. On 13. 5. 1979 i. e. the date given by the objector to be a date for giving the shops and land on rent, both the decree holder and the objector were minor. In the application the objector Vikram singh stated that he has taken the shops and land on rent, but in the statement he stated that his father took the shops and land on rent. The objector has not produced any documentary evidence for taking the shops and land on rent and only stated about payment of rent in the diary maintained by his father. This statement was also made by his father. Both father and objector has not produced the diary before the court to prove the fact of taking the shops and land on rent. This statement was also made by his father. Both father and objector has not produced the diary before the court to prove the fact of taking the shops and land on rent. One money order was stated to be sent by them, but no proof of sending such money order to the decree holder was placed on record. The objector stated about making payment of rent in his statement or in the statement of his father but not a single receipt was produced by them before the executing court. The objector stated that the rent was sent through money order, but it was refused but no action was taken by them to deposit the rent in court under Section 19a of the Raj. Rent Control Act. The objector stated about inaugural function of the shops, but this statement was also found to be incorrect. One Pandit was produced but he was not local man and even photographs of inaugural function were not produced by the objector. The bills produced were also not found to be true. The executing court held that if the objector is tenant of the respondent he must have deposited the rent but not a single receipt was produced by him. The objector did the business in the names of different styles Vicky Bear Bar, Vicky Restorant, Garden, Vickey medical Store, Vickey Sanitary and Hardware business and changed his statement that the shops were not in the disputed premises but were on some other sites. Indisputably the shops were the disputed shops. The commissioner in his report stated that in order to change the styles of the shops painting was done by the objector. If the objector would have been tenant in the disputed shops and land of the decree holder, he would not have stated him to be the owner of the shops in the Excise Department, Medical department and in the Punjab National Bank. In Punjab National Bank and in order to give guarantee he shown himself as owner of the shops. As per the report of Najir at the time of giving delivery of possession, the objector stated him to be an owner of the shops. Person named Ramovtar did not work under the father of the decree holder at any time. On the other hand the decree holder filed rent receipts Ex. 42 to Ex. As per the report of Najir at the time of giving delivery of possession, the objector stated him to be an owner of the shops. Person named Ramovtar did not work under the father of the decree holder at any time. On the other hand the decree holder filed rent receipts Ex. 42 to Ex. 63 given to Ramotar for the rent paid by him from the period 2. 6. 1980 to 2. 3. 1982. The decree was issued by the court after four years of the filing of the Civil suit. The civil suit filed by the objector only shows that he should not be evicted from the premises without following due process of law. Since the decree holder followed the procedure as provided in law it cannot be said that the objector is evicted from the disputed properties without following due procedure of law. The executing court considered all these points in the findings arrived at by it in favour of the decree holder and against the objector and hence the order passed under order 21 Rule 97 CPC rejecting the application cannot be said to be passed without considering the evidence of the parties and after hearing the parties. The order is just and proper. The objector has not been able to prove himself as tenant of the decree holder and the executing court rightly rejected the application filed by him under Order 21 Rule 97 CPC. ( 16 ) FOR these reasons the appeal being devoid of merit stands dismissed. As directed by this Court on 24. 5. 2005 and the undertaking submitted by the objector, he shall handover vacant possession of the shops and land within a period of 15 days to the decree holder from today and the Registry is directed to pay all the amount lying in deposit, deposited by the objector before this court from time to time with mesne profit to the decree holder as early as possible. The stay order passed by this Court on 24. 5. 2005 extended from time to time stands vacated. Any other amount deposited by the objector as rent in the trial Court may also be given to the decree holder as early as possible. If the objector failed to handover vacant possession to the decree holder within fifteen days from today, the executing court may proceed against the objector in accordance with law.