ORDER : 1. This petition is filed by the petitioner challenging the order passed by Executing Court below Exh.172 at Annexure-D to present petition and said application for producing documentary evidence may be allowed. 2. Short facts giving rise to the present petition are that the original plaintiff Sheth Babubhai Revchandbhai filed a Special Civil Suit No. 6 and 69 of 1974 in the Court of learned Joint Civil Judge (S.D.) Mahesana against the defendant-Patel Somabhai Mohanbhai for specific performance of Banakhat dated 20.4.1971, Exh.104 and Banakhat dated 26.4.1973, Exh.116 in respect of a property comprising of ground floor and first floor situated at City Survey No. 107, Tika No. 8/4 having Municipal Census No. 4/6/71/72 belonging to the said defendant Somabhai Patel. After the trial, learned trial Judge was pleased to pass common judgment and decree in both Special Civil Suit No. 6 and 69 of 1974 on 24.9.1982. 2.1 Thereafter, plaintiff filed Special Darkhast No. 4/1983 for the execution of the said judgment and decree. The plaintiff got executed the sale deed in his favour through court commissioner in respect of the suit property. The legal heirs of the plaintiff, respondent nos. 1 to 4, were issued possession warrant by the Executing Court against the legal heirs of defendant, respondent nos. 5 to 9, in respect of the suit property. When said legal heirs, respondent nos. 1 to 4, with Court bailiff came to take possession of the suit property, present petitioner came to know about court proceedings on 10.11.2010 and, hence, he being tenant rushed to the concerned court for the protection of his possession of the first floor of the suit property being municipal census no. 4/6/72 and there, he further came to know that possession warrant in respect of the suit property was issued on 7.5.2009 and therefore, he filed his objection application as a third party under section 47 of the Civil Procedure Code and also under Order 21, Rule 97 of CPC on 20.11.2010, Exh.88, with its stay applications Exh.90 on 22.11.2010. As the petitioner is a tenant of original defendant for the first floor of the suit property from the time before the purchase of the suit property by the original plaintiff from the original defendant from where he is running his office as he is practising Advocate in Mahesana District since more than 40 years. As the petitioner is a tenant of original defendant for the first floor of the suit property from the time before the purchase of the suit property by the original plaintiff from the original defendant from where he is running his office as he is practising Advocate in Mahesana District since more than 40 years. He was paying monthly rent of Rs. 40/- inclusive of municipal tax initially to the original defendant and, thereafter to his son Rasikbhai who did not issue him rent receipts; even the municipal tax was not paid by them, hence, he paid it to the municipality. Further, he is also paying light bill of his tenanted premises. Respondent no. 2 filed written reply Exh.91 to said objection application and its stay application on 13.12.2010. 2.2 Said Special Darkhast No. 4/1983 was transferred from Mahesana Court to Principal Civil Court at Visnagar and it is renumbered as Special Darkhast No. 8/2014 on 1.12.2014 as per the office order dated 20.10.2014 of District Court, Mahesana and at present said matter is pending before Court of learned Principal Senior Civil Judge, Visnagar, District-Mahesana. 2.3 In view of the stand taken by the legal representatives of original plaintiff-respondent no. 2 in their written objections Exh.91, present petitioner has to produce the most relevant and important documents for showing possession of the petitioner in respect of the suit property. It is the contention of the petitioner that he has filed application for production of documents vide Exh.172, which has been rejected by learned Executing Court on the ground that to fill up the lacuna, the application cannot be allowed. Being aggrieved and dissatisfied with the order of the Executing Court, the third party-present petitioner has preferred this application on the ground that the learned trial Court ought to have considered the facts that the present petitioner is a tenant of the suit premises since very long and plaintiff himself has admitted in his evidence that first floor has been rented to the present petitioner. He has also contended that the Executing Court ought to have taken into consideration that the third party i.e. the petitioner herein, though was in possession of the first floor as a tenant, he was not joined in the earlier suit by the plaintiff and no opportunity of being heard has been given to the present petitioner. He has also contended that the Executing Court ought to have taken into consideration that the third party i.e. the petitioner herein, though was in possession of the first floor as a tenant, he was not joined in the earlier suit by the plaintiff and no opportunity of being heard has been given to the present petitioner. He has also contended that in view of the provisions of CPC, the dispute has to be adjudicated by the Executing Court in the like manner as that of suit. It is contended that the trial Court has committed serious error of facts and law in rejecting the application at Exh.172 and failed to protect the substantive possession rights of the petitioner. 2.4 It is also the case of the petitioner that the Banakhat which is produced before the trial Court at Exh.116, at its page no. 1, line no. 11 specifically mentions that the first floor of the said house is rented to Advocate Prabhudas the petitioner on monthly rent and rent receipts are in his name. The original plaintiff-Babubhai Revchandbhai Sheth in his deposition at Exh.103 deposed in para-10 at page 9-10 about said Banakhat Exh.116, in para-36 at page 31-32 that suit property is rented and in para-37 on the same page that suit property is mortgaged for bank loan of Rs. 40,000/-. Moreover, the postal AD slips of different clients of the petitioner, which were received by the petitioner on different dates at his said rented premises also proves that the petitioner was having possession of the first floor of the suit property before the purchase of the suit property by the original plaintiff from the original defendant. This fact is also supported by the respondent no. 2 in his written reply Exh.91 in para-9 at page 4-5 that petitioner along with his son and other advocates used to sit in the suit premises. Not only that the judgment and decree of the trial Court refers to said Banakhat Exh.116 in Para 17-18 at Page 42-43, recorded findings that suit is let out to tenant etc. in paragraphs 29 and 30 on page 58, 59 and 60. 2.5 Being aggrieved by aforesaid order, the petitioner has filed present petition. 3. Heard learned advocate Mr. Mansuri for the petitioner and Mr. in paragraphs 29 and 30 on page 58, 59 and 60. 2.5 Being aggrieved by aforesaid order, the petitioner has filed present petition. 3. Heard learned advocate Mr. Mansuri for the petitioner and Mr. Dharmesh Shah for the respondent at length and perused the material placed on record as well as the decisions cited at bar. 4. Learned counsel, Mr. Mansuri for the petitioner has submitted the same facts, which are narrated in the memo of the petition. He has submitted that the present petitioner is a tenant prior to the filing of the suit and this fact was well within the knowledge of the plaintiff and the defendant and he has also contended that the present petitioner ought to have been joined as a party to their suit. He has also contended that without affording an opportunity of being heard, the trial Court has issued warrant for possession. According to him, as the present petitioner was tenant, without following due process of law, he cannot be evicted from the premises simply on the ground of passing of decree by the trial Court, especially when the tenant has not been joined as a party. While referring to the documentary evidence produced with this matter, he has submitted that there is an agreement to sell at Exh.116, page 125 of the paper book, wherein it has been specifically narrated that first floor was given to the present petitioner on rent. He has also contended that when the petitioner has raised objection by filing application, the Execution Court ought to have decided the same, as provided under Rule 99 of CPC and provided an opportunity of producing documentary evidence in respect of his contention that the petitioner was tenant in the suit premises. He has also contended that objection of the present petitioner is yet not decided by the Executing Court. While referring to the decision of this Court in the case of Chandravati Co-operative Housing Society Limited, Maninagar vs. Bhairavnath Education and Cultural Society Trust and Others, 1993 (1) GLR 116 , he has submitted that this application be allowed and the impugned order of the Executing Court, below Exh.172 be quashed and set aside. 5. Learned counsel, Mr. While referring to the decision of this Court in the case of Chandravati Co-operative Housing Society Limited, Maninagar vs. Bhairavnath Education and Cultural Society Trust and Others, 1993 (1) GLR 116 , he has submitted that this application be allowed and the impugned order of the Executing Court, below Exh.172 be quashed and set aside. 5. Learned counsel, Mr. Vyas appearing for the respondent has vehemently opposed the submissions of the petitioner and has submitted that this is third round of litigation and the suit was filed in 1974 and it was decreed in 1982. He has also contended that the sale deed was executed through Court Commissioner in favour of the respondent only. Possession of the suit property is yet to be given to the plaintiff-respondent herein. He has also contended that the original defendants have preferred First Appeal against the judgment and decree in the trial Court, which came to be rejected. He has also contended that Misc. Civil Application for contempt was filed by the decree-holder in 1990 and, in that matter, the affidavit was filed by the present petitioner himself and, accordingly, the petitioner was never tenant in the suit premises. He has also contended that the petitioner wants to delay the execution of possession warrant and thereby he is obstructing the way of plaintiff in getting the fruits of the decree. 5.1 While referring to the order dated 7.7.2017 passed by coordinate Bench in Special Civil Application No. 7362 of 2017 with Special Civil Application No. 7363 of 2017, learned counsel, Mr. Vyas has submitted that the petitioners therein had moved this Court against the order dated 28.2.2017 passed by learned Principal Senior Civil Judge, Visnagar, below application Exh.158 and 159 for appointment of Commission, which were rejected by the trial Court, which order is confirmed by this Court and, therefore, now the present petitioner cannot be permitted to produce any documentary evidence. According to him, the order of the Executing Court dismissing the application of the present petitioner is justified and no interference is warranted in the said order. He has prayed to dismiss the present petition. 6. Having considered the contention of learned advocate for the parties and the material placed on record and the decision cited at bar. According to him, the order of the Executing Court dismissing the application of the present petitioner is justified and no interference is warranted in the said order. He has prayed to dismiss the present petition. 6. Having considered the contention of learned advocate for the parties and the material placed on record and the decision cited at bar. It is an admitted fact that the respondent herein had filed the suit for specific performance of the contract against defendant-Somabhai and in that suit, decree for specific performance of the contract has been granted by the trial Court. It also appears from record that, against that judgment, the defendant has preferred First Appeal, which came to be dismissed and, ultimately, the plaintiff has filed the execution petition and, in that petition, the sale deed has been executed in favour of the plaintiff by appointment of Court Commissioner. Now the decree for possession is pending and pending that execution petition due to issuance of warrant for possession, present petitioner being a third party has filed objection and that objection is yet not decided by the trial Court. It is also an admitted fact that present petitioner-third party has also moved an application at Exh.172 for production of documents to substantiate his say that he was tenant in the suit premises. At this juncture, it is worthwhile to refer to the decision of Chandravati Cooperative Housing Society Limited Maninagar (supra) wherein this Court has observed as under:- “12. Aforesaid amended Rule 101 of Order 21 makes a substantial departure from the old provision. The language of this rule is peremptory and the powers given to the executing Court are of widest amplitude. The power which were hitherto not possessed by the executing Court, namely, power of deciding question of right, title and interest in the property which is subject-matter of execution of a decree, is now conferred upon the executing Court. Under the old Law the power of the executing Court was limited power. It did not possess the power to decide questions relating to right, title or interest in the property. Under the old Law the power of the executing Court was limited power. It did not possess the power to decide questions relating to right, title or interest in the property. Now such power is conferred on the executing Court under the rule and as observed herein above the power of adjudication is a substantial power and the procedure to be followed by the executing Court is that of regular trial because its orders is to be treated as a decree under Order 21 Rule 103 C.P. Code. Against such decree regular appeal can be preferred and, therefore, both the holder of a decree for possession as well as a person who has offered resistance or made obstruction are fully protected and full-fledged trial is contemplated followed by a right of a substantive First Appeal. 13. Order 21 Rule 104 C.P. Code makes the position still clearer by providing that every order made by the executing Court 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 proceedings, namely, proceedings under Order 21 Rule 97 (2) or Order 21 Rule 99 C.P. Code. Therefore, if a third party is in possession of the property, if it has already moved the Civil Court for its protection and for declaration of his right, title and interest vis-a-vis, property in his possession such suit is not made infructuous and the order passed by the executing Court is made subject to the order that may be passed in such suit. It is thus clear that a third party in possession of the property, if it has already resorted to a remedy of a civil suit for declaration of his right as well as to protect his possession is not in any way prejudiced. 14. From the aforesaid provisions, it becomes clear that a third party in possession of the property can be filing objection to application under Order 21 Rule 97 (2) of Civil Procedure Code get his right, title and interest fully adjudicated upon by the Civil Court by leading evidence and till then his possession is protected. If the order is adverse to third party, it has the right to appeal. If the order is adverse to third party, it has the right to appeal. It may be mentioned that if such third has already resorted to the remedy of filing a civil suit for declaration of his right, title or interest as well as for protection of its possession, such remedy of the third party is also not prejudiced. In my opinion if third party has not already instituted a suit for protection of its possession or for adjudication of its right, title or interest in the suit property, and if application under Order 21 Rule 97 (2) of Civil Procedure Code is made, such third party has the right to file objection and to point out to the Court as to why he should not be removed. There is no necessity for such third party to resort to a separate suit. In fact, legislature wanted to avoid filing of a separate suit by such third party if it has not filed such suit. The legislature in fact wanted to avoid municipality of proceedings. If wanted to provide efficacious remedy both to the decree-holder as well as to the third party in possession whose rights, title and interest, vis-a-vis, the property in question and vis-a-vis, a decree-holder are yet not adjudicated upon. Under the old provisions executing Court could not have undertaken this exercise. Now under the amended provision this power to adjudicate upon all questions including questions of right, title and interest in the property is given to the executing Court and, therefore, in my opinion, there is no need for such third party to file a separate suit if it has already not filed the suit and Rule 104 of Order 21 protects the pending suit and makes the order of the executing Court subject to the result of the pending suit. 15. From the aforesaid scheme of the rules, in my opinion, it becomes abundantly clear that application under Order 21 Rule 97 (2) of Civil Procedure Code filed by the holder of decree for possession must proceed expeditiously according to law by providing full opportunity to the decree-holder as well as obstructionist to lead whatever evidence they want to lead so that there can be final adjudication of all questions including question of their right, title and interest, vis-a-vis the property in execution. Till such application is decided question of recovering possession from such third party does not arise because the executing Court shall have to decide as to whether obstruction made by the third party is to be removed or not. The third party is, therefore, fully protected. Therefore, even if the third party has filed an independent separate suit for establishment of his right, title or interest, there is no justification in law for any Court to stay the proceedings under Order 21 Rule 97 (2) till such suit filed by the third party is decided. In fact, order passed under Rule 97 (2) or 99 which is to be treated as decree under Rule 101 is always subject to the result of such pending suit filed by the third party and, therefore, there can be no justification for stay of the proceedings under Order 21 Rule 97 (2) of Civil Procedure Code.” 7. In view of the above decision, it is quite clear that third party can file objection in a decree and it is the duty of the concerned trial Court to adjudicate the claims of the parties in consonance with law and the power is conferred on the Executing Court under the amended Rules to adjudicate the objections and to decide the same as that of regular trial because its order has to be treated as a decree under Order 21, Rule 103 of CPC. Now, in this case, on perusal of the material placed in the present matter, which consists of Agreement to Sell, page-125, there is recital that the first floor has been rented to Vakil Prabhudas. It also reveals from the typed copy of the deposition of the original plaintiff, page 163A onwards, that the plaintiff himself in his chief examination, in para-2, has averred that the first floor was in the occupation of the tenant and it was the duty of the defendant therein to get it vacated and to hand over vacant possession to the plaintiff. Therefore, prima facie, it appears that, at the relevant time, present petitioner was having tenancy rights and accordingly he raised objection before the Executing Court to decide his right of tenancy, therefore, it is necessary for him to produce certain documentary evidence. Therefore, prima facie, it appears that, at the relevant time, present petitioner was having tenancy rights and accordingly he raised objection before the Executing Court to decide his right of tenancy, therefore, it is necessary for him to produce certain documentary evidence. When the law requires that objection is to be decided on the line of procedure of regular suit then it is incumbent on the part of the Executing Court to permit both the sides to lead evidence and to decide the objections and to pass necessary orders, first to frame issue and then to decide objections and to pass necessary order thereon. 8. In the present petition, it is clearly found that the present petitioner sought for production of documentary evidence, which has been rejected by the trial Court without discussion and solely on the ground that as the matter is for hearing and document is filed for filling lacuna, the application is rejected. These observations of the Executing Court is not sustainable in the eyes of law. 9. On perusal of the order of Coordinate Bench of this Court in the aforesaid matter, it is found that the same was rejected on the ground that the petitioners are not entitled to seek help of the Court to collect the evidence through Commission for local inspection under Order 26, Rule 9 of the Code. It is also observed therein that considering the nature of the dispute raised by the petitioners it is for the petitioners to primarily prove that they are the tenants of the suit property. 10. In view of above, present petition is liable to be allowed. Accordingly, it is allowed. The impugned order passed by learned Executing court below Exh.172 is hereby quashed and set aside and the said application is hereby allowed and the petitioner herein-third party is permitted to produce documentary evidence, which are filed at Exh.172. Considering the fact that the matter is of the year 1982, the Executing Court is directed to see to it that entire proceedings is completed on or before 31st March 2020. The petitioner herein is directed to proceed with the matter and to cooperate with the learned Executing Court for completion of the matter in time bound period. No order as to costs. 11. The petitioner herein is directed to proceed with the matter and to cooperate with the learned Executing Court for completion of the matter in time bound period. No order as to costs. 11. It is clarified that the observations made herein above are made only to decide present controversy with regard to order of the trial Court passed below Exh.172 application and the aforesaid observations may not be treated as conclusive in nature and the trial Court may decide the objections in accordance with law without being influenced by the observations made herein above. R&P to be send back to the concerned trial Court immediately.