JUDGMENT S. V. Gangapurwala, J. - The matter has been placed before us to answer the issues referred by the learned Single Judge under order dated 15.12.2016 in Second Appeal No.550/2016. ISSUES "i. Whether a person not a party to ''lis'' or not claiming through parties to the ''lis'' (third party), not in possession and/or not claiming to be in possession can maintain an action pursuant to Order XXI, Rule 97 of the Civil Procedure Code? ii. When there is already a substantive ''lis'' initiated by the person as aforesaid (third party) and pending for adjudication of rights in respect of immovable property, whether a purported objection invoking Order XXI, Rule 97 of the Code of Civil Procedure, 1908 in execution of decree, by the same person can be entertained for vindication of rights to such immovable property giving treatment to it according to Rules 97 to 103?" 2. The learned Single Judge of this Court in case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh, (2008) 1 MhLJ 340 observed that it is not only the person in possession or a person dispossessed are entitled to file application to obstruct the execution of the decree for possession pursuant to the provision of Order XXI, Rule 97 of Code of Civil Procedure. But, a third party can resist and/or obstruct the execution of decree and seek adjudication of his claim and rights by making an application to avoid multiplicity of the proceedings. The learned Single Judge dealing with the Second Appeal No.550/2016 referred to the aforesaid judgment and observed that the observation as are appearing in paragraph 13 of the judgment of the learned Single Judge of this Court in a case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh (supra) do not appear to be congruous and compatible with the context and intent underlying the supreme court''s judgments, delivered on the substratum of possession being claimed by the persons putting up obstruction to execution of decree and further observed that text of Order XXI, Rule 97 of the Civil Procedure Code has been read down by the courts by letting an opportunity to the person in possession of the decreed property, not party to litigation and not claiming through parties to litigation, to have adjudication of rights. He further observed that it does not appear to be a case wherein such an opportunity and opening has been made available to a person who does not claim to be in possession of the decreed property and thereby opined that the matter can be more advantageously heard by a larger bench for a decision to resolve the situation. Pursuant thereto Hon''ble the Acting Chief Justice had directed to place the matter before us to answer the issue raised under order dated 15.12.2016 in Second Appeal No.550/2016. 3. Mr. Patil (Beedkar), learned counsel contends that the third party who is resisting and / or objecting to the execution of decree irrespective of possession, can also seek adjudication of his claim and rights by making an application to avoid multiplicity of proceeding and need not be in actual physical possession of the property and the execution. The learned counsel relies on the judgment of the learned Single Judge of this Court in case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh (supra). 4. The learned counsel submits that Order XXI, Rule 97 of the Code of Civil Procedure does not restrict the objection to be raised by the person in actual physical possession, but even a person if he has right to claim possession would be entitled to maintain action. The learned counsel relies on the judgment of the Apex Court in a case of Ashan Devi and Anr. Vs. Phulwasi Devi and Others, (2004) AIR SC 511 and submits that provision of Order XXI, Rule 97 and 99 of Code of Civil Procedure are to be widely and liberally construed to enable the Executing Court to adjudicate inter se claims of the decree holder and the third parties in the execution proceedings themselves to avoid prolongation of litigation by drawing parties to file independent suit. Mr. Patil, learned counsel further relies on the judgment of the Apex Court in case of Shreenath and Another Vs. Rajesh and Others, (1998) AIR SC 1827 and contends that the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the Executing Court can adjudicate the claim made in any such application under Order XXI, Rule 97. Rajesh and Others, (1998) AIR SC 1827 and contends that the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the Executing Court can adjudicate the claim made in any such application under Order XXI, Rule 97. The use of words "any person" includes all persons resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other persons claiming right on their own including a stranger. The learned counsel also relies on the judgment of the Apex Court in a case of P. Janardhana Rao Vs. Kannan and Others, (2004) 11 SCC 511 and in a case of N.S.S. Narayana Sarma and Others Vs. M/s. Goldstone Exports (P) Ltd. and Others, (2002) AIR SC 251 . The learned counsel submits that the person in constructive possession would also be in a position to obstruct the decree for possession by maintaining objection under Oder XXI, Rule 97 of Code of Civil Procedure. 5. The learned counsel relying on the judgment of the Apex Court in the case of Mangal Singh and Others Vs. Smt. Rattno (dead) by hear legal representatives and Another, (1967) AIR SC 1786 submits that the constructive possession may be through a lessee, mortgagee, licensee, etc. He further states that the use of the expression "possessed by" instead of the expression "in possession of" was intended to enlarge the meaning of this expression, so also relies on the judgment of the Apex Court in the case of Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, (1959) AIR SC 577 and contends that the terminology, any property possessed by a female Hindu before or after the commencement of the Hindu Succession Act, 1956 in Section 14 of the Act should be interpreted as the possession on the date when the Act came into force and the possession need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of Section 14. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of Section 14. The word "possessed" is used in Section 14 in a broad sense and in the context possession means the state of owning or having in one''s hands or power. It includes possession by receipt of rents and profits. 6. Mr. Kadam, learned counsel contends that only a person in actual physical possession can maintain an application under Oder XXI, Rule 97 of Code of Civil Procedure or a decree holder if the execution of decree is obstructed by the person in possession. A person not in actual physical possession of the property under execution cannot maintain an objection under Order XXI, Rule 97 of Code of Civil Procedure. The learned counsel to buttress his submissions relies on the following judgments: 1. Ashan Devi and Anr. Vs. Phulwasi Devi and Others, (2004) AIR SC 511 . 2. N.S.S. Narayana Sarma and Others Vs. M/s. Goldstone Exports (P) Ltd. and Others, (2002) AIR SC 251 . 3. Gaurihar Baburao Batane and Others Vs. Ashok Banudas Gajare and Another, (2000) 4 MhLJ 667 . 4. Shreenath and Another Vs. Rajesh and Others, (1998) AIR SC 1827 . 5. Brahmdeo Choudhary Vs. Rishikesh Prasad Jaiswal and Another, (1997) 3 SCC 694 . 6. Anwarbi Vs. Pramod D. A. Joshi and Others, (2000) 10 SCC 405 . 7. Before we advert to the submissions canvassed by the learned counsels and refer to the judgments of the Apex Court, so also the judgment of the learned Single Judge of this Court in a case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh (supra) and the order passed by the learned Single Judge dated 15.12.2016 thereby opining a different view than the one held by the learned Single Judge in case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh (supra) it would be appropriate to refer to the provisions of the Order XXI, Rule 97 of Code of Civil Procedure to Order XXI, Rule 101 of the Code of Civil Procedure: "97. Usman Papamiya Attar Shaikh (supra) it would be appropriate to refer to the provisions of the Order XXI, Rule 97 of Code of Civil Procedure to Order XXI, Rule 101 of the Code of Civil Procedure: "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 the 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 detained in the civil prison for a term which may extend to thirty days. 99. Dispossession by decree-holder or purchaser (1) Where any 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. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 100. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 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 deemed 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." 8. The scope and the spectrum of Rule 97 of Order XXI of Code of Civil Procedure has been a subject matter of interpretation before the Apex Court in various judgments referred to supra. The Apex Court has interpreted Rules 97 and 99 of Order XXI of the Code of Civil Procedure liberally and in wide terms. 9. Reading Rule 97 of Order XXI it is clear that 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 and under Order XXI, Rule 99 where any 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. The Apex Court settled the proposition of law in the catena of judgments that the person in possession need not wait until his dispossession to raise an objection to the decree and can resist the decree by filing application even before his dispossession and all questions are required to be decided by the Court including questions relating to right, title and interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 of Order XXI of Code of Civil Procedure. 10. In the present case, the moot question is "whether a person not in possession of the property can maintain an application under Order XXI, Rule 97 resisting the execution." 11. The learned Single Judge of this Court in the case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh (supra) referring to the judgment of the Apex Court in the case of Ashan Devi and Anr. Vs. Phulwasi Devi and Others and P. Janardhana Rao Vs. Kannan and Others referred to supra held that even if a person is not in possession of a property he can resist an application under Order XXI, Rule 97 of the Code of Civil Procedure. 12. In the case of Ashan Devi and Anr. Vs. Phulwasi Devi and Others (supra) the Apex Court was considering the question as to whether purchaser of a vacant land under registered sale deed and claiming to be in possession of the land can maintain an application under Order XXI, Rule 97 of the Code of Civil Procedure complaining of his alleged dispossession in execution of the decree of specific performance. The Apex Court observed that provisions of Order XXI, Rule 97 and 99 have to be validly and liberally construed to enable Executing Court to adjudicate the inter se claim of the decree holder and the third parties in execution proceedings to avoid prolongation of litigation by drawing parties to file independent suits. The Apex Court further observed that in interpreting the provisions of Order XXI Rule 97 of the Code and the other provisions in the said order, the aim and object for introducing amendment to the Code cannot be lost sight of. Under the unamended Code, third parties adversely affected or dispossessed from the property involved, were required to file independent suits for claiming title and possession. Under the unamended Code, third parties adversely affected or dispossessed from the property involved, were required to file independent suits for claiming title and possession. The Legislature purposely amended provisions in Order XXI to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. 13. The Apex Court in case of Ashan Devi and Anr. Vs. Phulwasi Devi and Others (supra) relied upon the observations in case of See Bhag Mal vs. Ch. Parbhu Ram, (1985) 1 SCC 61 AIR 1985 SC 150 . Further the Apex Court observed thus:- "The High Court in the impugned judgment dated 23.4.2001 has construed the word "dispossessed" under Order XXI Rule 99 of the Code to mean actual and physical dispossession. The reasoning adopted is that if the expression ''dispossessed'' is thus not narrowly construed, ''anybody apprehensive of dispossession or anybody claiming right although not actually dispossessed can come within the purview of Rule 99 and there would be flood-gate and a decree holder who obtained a decree by due process of law would be frustrated in not getting the fruit of the decree." In the said case the person claimed to be in possession of the vacant land. The land in the said case was a vacant land. The person raising an objection under Order XXI, Rule 97 was in possession of the vacant land and in execution he was dispossessed. In that context the Apex Court observed that even though the objectors were not in actual and physical possession of the vacant land, but as a result of delivery of possession of the land through Nazir to the decree holder, lost their right and control over the land to put it to their use, they will have to be treated to have been "dispossessed" within the meaning of Order XXI Rule 99. As far as the vacant land is concerned, the possession is presumed to be that of the owner and he has right and control over that land. 14. In the case of Shreenath and Another Vs. As far as the vacant land is concerned, the possession is presumed to be that of the owner and he has right and control over that land. 14. In the case of Shreenath and Another Vs. Rajesh and Others (supra) the Apex Court observed that the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under order 21, Rule 97, has to be decided by the Executing court itself. The Apex Court further observed that "In other words, when such person is in possession the adjudication to be under rule 97 and in case dispossessed adjudication to be under rule 100 (old law) and Rule 99 under the new law." Thus a person holding possession of an immovable property on his own right can object in the execution proceeding under Order 21, rule 97. One has not to wait for his dispossession to enable him to participate in the execution proceedings. This shows that such person can object and get adjudication when he is sought to be dispossessed by the decree-holder. In the said judgment, the Apex Court held that the decision of the Full Bench of the Madhya Pradesh High Court in case of Smt. Usha Jain and others Vs. Manmohan Bajaj and others cannot be held to be a good law. The Madhya Pradesh High Court had held that under Order XXI, Rule 97 no enquiry into the title or possession of a third party is contemplated at any rate at his instance and that Executing Court is not bound to stay its hands the moment a third party has filed his objection and that the remedy of the persons in possession obstructing the execution is only after dispossession. The Apex Court in the said case has specifically observed that when such person is in possession the adjudication to be under rule 97 and in case dispossessed adjudication to be under Order XXI, Rule 99 under the new law. 15. In case of P. Janardhana Rao Vs. Kannan and Others (supra) the Apex Court observed that Order XXI, Rule 97 of the Code of Civil Procedure is the provision for removal of the person bound by the decree who does not vacate. 15. In case of P. Janardhana Rao Vs. Kannan and Others (supra) the Apex Court observed that Order XXI, Rule 97 of the Code of Civil Procedure is the provision for removal of the person bound by the decree who does not vacate. It takes into account a situation where resistance to possession is offered by the judgment-debtor or any other person bound by the decree which will include the claim of a person who claims to be in possession in his own right and independently of the judgment- debtor but whose claim ex-facie is unsustainable. Where, however, resistance is offered or where obstruction proceeds from the claimant claiming to be in possession in his own right and whose claim cannot be rejected on the ground of want of good faith, without investigation, the decree-holder must proceed under Order XXI, Rule 97 of Code of Civil Procedure. 16. In the case of N.S.S. Narayana Sarma and Others Vs. M/s. Goldstone Exports (P) Ltd. and Others (supra) the Apex Court has observed that the "Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree holder entitled to possession of the property encounters obstruction from any person." From the provisions in these rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with all issues relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigant public that it takes years and years for the decree holder to enjoy fruits of the decree, the legislature made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that 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. 17. On a fair reading of the rule it is manifest that the legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree holder or any other person "in possession" of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the Court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the Courts seized of an execution proceeding. The Court cannot shirk its responsibility by skirting the relevant issues arising in the case. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the Courts seized of an execution proceeding. The Court cannot shirk its responsibility by skirting the relevant issues arising in the case. In the said case also the Court observed that the legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the Court otherwise has jurisdiction to entertain a dispute of the nature. 18. In the case of N.S.S. Narayana Sarma and Others Vs. M/s. Goldstone Exports (P) Ltd. and Others (supra) the obstructionists were claiming to be in possession of land and had constructed Pakka houses thereon. The objection filed by them under Order XXI, Rule 99 read with Rule 101 of Code of Civil Procedure was rejected by the Court as not maintainable. In that context the Apex Court held the objection to be maintainable as the Appellants therein were claiming to be in possession of property. 19. In case of Brahmdeo Choudhary Vs. Rishikesh Prasad Jaiswal and Another (supra) the Apex Court observed that it is difficult to appreciate how executing Court can tell obstructionist that he must first loose possession and then only his remedy is to move application under Order XXI, Rule 99 of Code of Civil Procedure and pray for restoration of possession. The Apex Court held that Order XXI, Rule 97 provides statutory remedy both to decree holder as well as to obstructionist. The Apex Court observed thus:- "Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order XXI, Rule 97 sub-rule (1) and he cannot bypass such obstruction and insist on re-issuance of warrant for possession under Order XXI, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order XXI, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructions that he must first lose possession and then only his remedy is to move an application under Order XXI, Rule 99, Civil Procedure Code and pray for restoration of possession." In the said case also the obstructionist was occupying the decreetal premises and had offered resistance to the execution of a decree. In the case of Anwarbi Vs. Pramod D. A. Joshi and Others (supra) the Apex Court observed that the obstruction was at the hands of the person in possession. It is for the decree holder to take appropriate steps under Order XXI, Rule 97 for removal of the obstruction and to have the rights of the parties including the obstructionist adjudicated under the provisions of Order XXI, Rule 101. In that case also the obstructionist who had filed application under Order XXI, Rule 97 was in possession of the property on the ground that he had purchased the property and was in possession of the suit property in his own rights. 20. In all the judgments referred to supra the persons were claiming to be in possession of the property. The judgments of the Apex Court cannot be read as Euclid''s theorem. They will have to be read in the context in which they were delivered. In none of the judgments referred to supra the Apex Court has observed that a person not in possession can still maintain an application under Order XXI, Rule 97 and 99 of Code of Civil Procedure. 21. In order to decide the issue referred to it will be necessary to deal with the concept of possession. The jurisprudential concept of the possession involves ''animus possidendi'' and ''corpus possidendi''. 22. In Wharton''s law-lexicon possession is defined as being equivalent to "the state of owning or having a thing in one''s own hands or power." 23. The possession is a polymorphous term which may have different meaning in different context. Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so. Possession must be a conscious possession. Possession may be de facto possession as also precarious possession. The term possession may mean effective physical or manual control or occupation evidenced by some outward act sometimes called de facto possession. Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so. Possession must be a conscious possession. Possession may be de facto possession as also precarious possession. The term possession may mean effective physical or manual control or occupation evidenced by some outward act sometimes called de facto possession. The term possession may also mean legal possession, that possession which is recognized and protected as such by law. The possession implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. An open piece of land is presumed to be in possession of the owner unless it is proved by the trespasser that he had done some substantial act of possession over the land which may excite the attention of the owner that he has been dispossessed. The possession refers not only physical occupation of property or a piece of land but also dominion or control over it. A person is said to be in constructive possession, if he has a control or dominion over a property and intent to control the property such as through a tenant or agent. 24. The language and the phraseology of Rules 97 and 99 of Order XXI of the Code of Civil Procedure cannot be stretched to an extent that it would give rise to a fresh litigation between a party not in possession of the subject matter of decree for possession. The resistance or obstruction by any person to the subject matter of the property of the decree for possession of immovable property would mean the resistance or obstruction by a person in possession of the property. The resistance or obstruction to the possession of immovable property that is the subject matter of a decree for possession cannot be by a third party not in possession of the property, but a person who claims to be in possession. If the provision is interpreted as is interpreted by learned Single Judge of this Court in a case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh (supra) then it would open Pandora''s box and the decree holder will have to wait for execution in perpetuity. If the provision is interpreted as is interpreted by learned Single Judge of this Court in a case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh (supra) then it would open Pandora''s box and the decree holder will have to wait for execution in perpetuity. The decree holder may make an application under said Rule (1) of 97 if the resistance or obstruction is made by any person in obtaining possession of the property for possession or execution of a decree of immovable property and that resistance or obstruction is physical resistance or obstruction by a person in possession of the property. Rules 97 and 99 of Order XXI of CPC read conjointly and in harmony, the person not in possession would not have the cause to resist the decree for possession of immovable property. 25. The provisions of Order XXI, Rule 97 to 99 cannot be extended to mean that the persons claiming right, title and interest over decreetal property though not in actual physical or constructive possession still would be in a position to obstruct the decree. The obstructionist as contemplated under Order XXI, Rule 97 and 99 would mean a person in possession of the property and not merely a person claiming a right, title or interest over that property. A person not in possession of the property would not be entitled to raise objection either under Rule 97 or 99. 26. The view of the learned Single Judge in case of Sardar Hasanbhai Attar Vs. Usman Papamiya Attar Shaikh (supra) does not appear to be the correct. 27. In light of the above, Issue No.1 is answered accordingly. The person not a party to ''lis'' or not claiming through parties to the ''lis'' (third party), not in possession and/or not claiming to be in possession cannot maintain an action pursuant to Order XXI, Rule 97 of the Civil Procedure Code. 28. This takes us to the next issue under reference. We do not find any conflicting judgment on this issue of this Court nor the same appears to have been referred in the order making reference. 29. If a person is in possession of property and is sought to be dispossessed under an execution of a decree, said person in possession of the property can file an objection under Order XXI rule 97 of the Code of Civil Procedure to protect his possession. 29. If a person is in possession of property and is sought to be dispossessed under an execution of a decree, said person in possession of the property can file an objection under Order XXI rule 97 of the Code of Civil Procedure to protect his possession. The filing of the earlier suit would not be a bar for such person to raise objection. 30. Reference can be had to the judgment of the Apex Court in a case of Har Vilas Vs. Mahendra Nath and Others, (2011) 15 SCC 377 . 31. The Apex Court in the said case has observed as under: "The Full Bench decision of the Madhya Pradesh High Court in Usha Jain case has been overruled by this Court in Shreenath v. Rajesh, (1998) 4 SCC 543 . It has been held that a third person claiming to be in possession of the property forming the subject-matter of decree in his own right can resist delivery of possession even by filing an objection under Order 21 Rule 97 of the Code of Civil Procedure in the executing court itself and if that is done, the objection shall have to be determined by the executing court itself. The provisions of rule 100 (of the old CPC, the equivalent provision whereof is Rule 99 in the new CPC) will not defeat the right of such person to get his objection decided under Rule 97 which is a stage prior to his dispossession. In view of the decision of this Court in the case of Shreenath the impugned view of the High Court based on the Full Bench decision of the High Court of Madhya Pradesh in the case of Usha Jain cannot be sustained. However, during the course of hearing, it was brought to our notice that the appellant herein has already filed a suit for permanent injunction, registered as Suit No. 286 of 1990, in the Court of Civil Judge, Shikohabad and therein a temporary injunction has been obtained by the plaintiff protecting his possession. However, we are of the opinion that in view of the decision of this Court in the case of Shreenath as also in Anwarbi v. Pramod D.A Joshi, (2000) 10 SCC 405 the objections should have been heard and decided by the executing court itself. The appeal is allowed. However, we are of the opinion that in view of the decision of this Court in the case of Shreenath as also in Anwarbi v. Pramod D.A Joshi, (2000) 10 SCC 405 the objections should have been heard and decided by the executing court itself. The appeal is allowed. The impugned decisions of the executing court and the High Court are set aside. The objection filed by the objector (appellant before us) shall now be heard and decided in accordance with Rule 97 read with Rule 101 of Order 21 of the Code of Civil Procedure. A separate suit is not maintainable. The objections filed by the appellant are directed to be adjudicated upon by the executing court expeditiously and consistently with the directions made hereinabove." 32. In view of the above, it will have to be held that, if a person is in possession of a property, then even if, he has filed a suit and the same is pending for adjudication of the rights still he would be entitled to maintain an application under Order XXI Rule 97 for vindication of rights to such immovable property giving treatment to it according to Rules 97 to 103. However, the person not in possession of the property may not be entitled to maintain an application under Order XXI Rule 97, irrespective of the fact whether he has filed a substantive lis and is pending for adjudication. 33. The Issues referred to are answered accordingly.