JUDGMENT : 1. Rule returnable forthwith. Ms. Anuja Nanavati, learned advocate waives service of notice of rule for and on behalf of the respondents. 2. Present petitioner has challenged the order dated 17th April, 2013 passed below Exh.16 in Small Darkhast No.21 of 2011 by the learned Additional Judge, Small Causes Court, Surat rejecting the objections filed by the present petitioner in the Execution Application preferred by the respondents. 3. Heard learned advocates for the respective parties. 3.1 Short facts of the present case may be summarized as under:- That, Small Cause Civil Suit No. 60 of 1988 was filed by the respondents against the husband of the petitioner on the ground of arrears of rent and mesne profit. That, the petitioner was not joined as party respondent. That, husband of the present petitioner left the suit premises on 6th March, 1992 since then the present petitioner is residing in the suit premises. That, suit filed by the respondents came to be dismissed by the learned Small Cause Court vide order on 8th April, 2005. That, respondents preferred an appeal being Regular Civil Appeal No. 20 of 2005 against the husband of the petitioner wherein, also present petitioner was not joined as party. That, Appeal preferred by the respondents, came to be allowed by the learned Fast Track Court, Surat on 31st December, 2010. 4. Being aggrieved by the order passed by the learned Fast Track Court, Surat in Regular Civil Appeal No. 20 of 2005, the petitioner filed revision application being Civil Revision Application No. 119 of 2011 before this Court wherein, the present petitioner rendered draft amendment being wife of the petitioner. That, Civil Revision Application No. 119 of 2011 was not entertained with a clarification that this Court has not examined the matter on merits and the petitioner was permitted to raise all the contentions before the Executing Court which are permissible under the law. Thereafter, respondents filed an execution application being Small Darkhast No. 21 of 2011 before the learned Small Court, Surat on 14th June, 2011. Thereafter, when petitioner came to know about the filing of the aforesaid application, she filed an objection in the said execution application below Exh.16 submitting that the husband of the petitioner left the suit premises in the year 1992 and she does not know the whereabouts of her husband. Thereafter, when petitioner came to know about the filing of the aforesaid application, she filed an objection in the said execution application below Exh.16 submitting that the husband of the petitioner left the suit premises in the year 1992 and she does not know the whereabouts of her husband. That, in the said objections, the respondents are residing at the ground floor of the said premises, however, respondents had not joined the present petitioner as party in any of the proceedings intentionally and summons in the appeal proceedings was also wrongly served. That, present petitioner had also filed suit being Regular Civil Suit No. 124 of 2012 seeking prayer for quashing and setting aside the judgement and decree passed by the learned Civil Court in the Regular Civil Appeal No. 20 of 2005 and the hearing of the Exh.5 application was pending at the time of filing objection below Exh. 16. That, the petitioner had also filed suit being Regular Civil Suit No. 59 of 2012 for the purpose of getting declaration regarding the “Civil Death” of her husband which is pending for adjudication. 5. Learned advocate for the petitioner vehemently urged that learned Additional Small Cause Judge, vide order dated 17.4.2013, rejected the application filed by the present petitioner below Exh.16. That, the impugned order passed below Exh.16 rejecting the application preferred by the petitioner is prima facie illegal, contrary to the provisions of the Order 21, Rule 97 to 103 of the Civil Procedure Code, 1908. It is further submitted that the petitioner is in possession of the disputed premises since long and she was not joined as party to the proceedings in Small Cause Suit No. 60 of 1988 as well as Regular Civil Appeal No. 20 of 2005. Therefore, execution application cannot be executed against her. It is further submitted that under Order 21 Rule 97 of CPC, when the petitioner has resisted the prayer made by the respondents in execution application, the executing Court was bound to proceed with and adjudicate upon the application in accordance with the provisions of CPC as provided in Rule 98 of Order 21 of C.P.C. It is further submitted that Executing Court has committed grave error in not deciding the questions raised by the petitioner in application filed under Order 21 Rule 97 of CPC relating to rights, title or interest in the suit properties. That, Executing Court was bound to determine the application as petitioner was not required to file a separate suit for the said purpose. Learned advocate for the petitioner while referring Section 5(11)(b) of The Gujarat Rent Hotel and Lodging House Rates Control Act submitted that present petitioner is tenant and is in possession of the suit premises. That, after determination of the lease, with or without the assent of the landlord, she was denied the title under the Bombay Rent Act. That impugned order passed by the Small Cause Court rejecting the application vide Exh.16 is prima facie erroneous, illegal and improper. Therefore, it was requested by learned advocate for the petitioner to quash and set aside the impugned order dated 17th April, 2013 passed by learned Additional Small Cause Judge, Surat in Small Darkashat No. 21 of 2011 below exh.16. 6. Learned Senior Advocate Mr. Sudhir Nanavati appearing for Ms. Anuja Nanavati, learned advocate for the respondents has strongly objected the arguments advanced by learned advocate for the petitioner and submitted that against the judgement and order dated 8.4.2005 passed in Small Cause Civil Suit No. 60 of 1988 instituted by the respondent for eviction of suit premises on the ground of arrears of rent for the period of more than six months, Regular Civil Appeal No. 20 of 2005 was preferred by the respondents against the husband of the present petitioner namely Mr. Shivcharan Pannalal wherein, the Appellate Court clearly observed in para 19 that the matter was squarely covered under Section 12(3) (a) of the Rent Act. That, the averments made by the present petitioner in application below Exh.16 in Execution Proceedings i.e. Small Darkhast No. 21 of 2011 were not true and correct. It is further submitted that in the suit preferred by the respondent i.e. Small Cause Civil Suit No. 60 of 1988, deposition of the present petitioner was recorded before the Court wherein, she has never stated that her husband was expired or she was tenant in the suit premises. That, on the contrary, it was accepted by the present petitioner that her husband was alive. That, on the contrary, it was accepted by the present petitioner that her husband was alive. That, execution application was preferred on 14th June, 2011 while Regular Civil Suit No. 59 of 2012 was filed by the present petitioner before the Civil Court for the purpose of getting declaration under Section 107 and 108 of the Indian Evidence Act on 3rd February, 2012 which is yet pending for adjudication. That, the Court below has rightly decided the application vide exh.16 observing that the said suit preferred by the petitioner is still pending which, would not believe that her husband was expired on 6th March, 1992 till final decision of the suit preferred by the petitioner. It can be declared if suit would be allowed from passing of the judgement. It is further submitted that another suit was filed by the present petitioner i.e. Regular Civil Suit No. 124 of 2012 with a request of declaration that the decree passed in Regular Civil Appeal No. 20 of 2005 as null and void, as it was received with fraud. It is further submitted that Regular Civil Suit No. 124 of 2012 was also dismissed by the 21st Additional Senior Civil Judge, Surat vide order dated 16th October, 2018 and which has got finality. That, the petitioner was also remained present in the Civil Revision Application No. 119 of 2011 before this Court. That, she was aware with the proceedings of Small Cause Civil Suit No. 60 of 1988 and Regular Civil Appeal No. 20 of 2005. That, provisions of Order 21 Rule 97 would not be applicable to the present case, considering the facts of the case. It is further submitted that the petitioner is trying to prolong the matter unnecessarily with a view not to get the fruit of the judgment and decree passed by the Appellate Court in favour of the respondents. That, she is not tenant of the suit premises. That, Civil Suit No. 59 of 2012 preferred by the petitioner is still pending. That, the statement of the petitioner was not correct that she came into knowledge for the first time in the executing proceedings initiated by the respondents. That, she is not tenant of the suit premises. That, Civil Suit No. 59 of 2012 preferred by the petitioner is still pending. That, the statement of the petitioner was not correct that she came into knowledge for the first time in the executing proceedings initiated by the respondents. Learned advocate appearing for the respondents in support of his arguments has relied upon the decision rendered in case of Patel Prabhudas Shankardar Versus Seth Prakashchandra Babubhai reported in 2019(O) AIJEL-HC-241619 and in case of Shivshankar Babulal Thakor and others Vs. Thakker Ravikant Narayandas reported in 1989 (2) GLH (U.J) 29 and also the decision rendered in case of Babulal Vs. Raj Kumar reported in 1996 (3) SCC 154 . Hence, it was requested by learned advocate appearing for the respondents to dismiss this petition. 7. Having considered the facts of the case and the record produced before this Court as well as the submissions made by learned advocates appearing for the respective parties, first of all this Court would like to refer the decision rendered in case of Shivshankar Babulal Thakor and others (Supra), wherein, it was held that defendant Nos. 2 and 3 were also tenants of the suit premises. Admittedly, no notice of termination of tenancy was given to them, and therefore, tenancy rights were not validly terminated. It was held that as no valid notice as required under Section 12(2) of the Act was served upon the tenants, no decree for eviction could have been passed. It also appears that in the decision of the Hon’ble Apex Court rendered in case of Babulal (Supra) it is held that:- 6. The controversy is no longer res integra. This Court in Bhanwar Lal v. Satyanarain & Anr. [ (1995) 1 SCC 6 ] considered the controversy and had held that even an application filed under Order 21 Rule 35(3) or one filed under Section 47 would be treated as an application under Order 21 Rule 97 and an adjudication is required to be conducted under Rule 98. Dispossession of the applicant from the property in execution is not a condition for declining to entertain the application. The reasons are obvious. The specific provisions contained in Order 21 Rules 98, 101, 102 enjoin conduct of a regular adjudication, finding recorded thereon would be a decree and bind the parties. Dispossession of the applicant from the property in execution is not a condition for declining to entertain the application. The reasons are obvious. The specific provisions contained in Order 21 Rules 98, 101, 102 enjoin conduct of a regular adjudication, finding recorded thereon would be a decree and bind the parties. In Para 7 thereof it was held thus: "In the above view we have taken, the High Court has committed grievous error of jurisdiction and also patent illegality in treating the application filed by the appellant as barred by limitation and the third one on res judicata. Once the application, dated 25.5.1979 was made, the Court should have treated it to be one filed under Order 21, Rule 97 (1) CPC. The question of res judicata for filing the second and third applications does not arise. Under these circumstances, the appellate court, though for different reasons was justified in directing an enquiry to be conducted for removal of the obstruction or resistance caused by Satyanarain under Order 21, Rules 35(3) and Order 21, Rules 101 and 102 of CPC". 7. It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the object or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment to CPC that may be pending on the date of the commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21, Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Thus, the procedure prescribed is a complete code in itself. Therefore, the executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance. 8. In Another decision of this Court rendered in case of Patel Prabhudas Shankardar (Supra), wherein, it is held that 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. 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. 9. 9. Having heard learned advocates for the respective parties, documents produced on record which has gone through by this Court, the question that arise for consideration is whether the petitioner being member of family of original tenant claiming to have been residing with the tenant at the time of leaving house can resist the execution of decree passed against tenant being member of the tenant family. 10. From the application Exh.16 submitted by the petitioner in Small Execution Application No. 21 of 2011, for the first time, she declared that Opponent had left the house on 6th March, 1992. However, she tried to find out his whereabouts but, he was not found. It was further submitted that the petitioner were also staying on the upper portion of the suit premises which respondents know very well however, without joining her as party, wrongly they had obtained the judgement and decree in respect of the suit premises. As per her contention, she was staying since long in the suit premises and her name was also entered in the Government record as occupant. It was further contended by the petitioner that, in appeal, in which the decree was granted, her husband was shown as tenant and he was wrongly executed summons issued by the Court, she was joined as party in the appeal also. However, it was known to the respondents that her rights, interest and occupation of judgement creditor was involved in the suit premises, with malafide intention decree was obtained by the judgment creditor. That, Opponent-her husband had left the suit premises since last many years and he had no concerned with the suit premises. She was occupant having possession of the suit premises as tenant, and therefore, judgement and decree passed against her husband were not enforceable in the eye of law and cannot be executed against her. It was further contended that notice was affixed at the suit premises by bailiff of the Court, and therefore, for the first time, she came to know that without placing the true and correct facts before the Court, in absence of her husband, by fraudulent manner, decree was obtained by the respondents. She has objected the execution petition preferred by the respondents in a capacity of tenant as well as representative of the original tenant–her husband. She has objected the execution petition preferred by the respondents in a capacity of tenant as well as representative of the original tenant–her husband. If, we consider the relevant documents placed before the Court, it appears that Small Cause Suit No. 60 of 1988 was preferred by the respondents against husband of the petitioner on the ground of arrears of rent and vacate the possession of the suit premises. Learned trial Court rejected the prayer for vacating the suit premises prayed by the respondent but allowed the prayer of arrears of rent vide judgement and decree dated 18th February, 2005. The said judgment and decree was challenged by the respondent by filing Regular Civil Appeal No. 20 of 2005 before the District Court. After hearing the parties, District Court was pleased to allow the Regular Civil Appeal No. 20 of 2005 preferred by the respondents and judgement and decree passed by the trial Court in Small Cause Civil Suit No. 60 of 1988 was quashed and set aside. The defendant-original tenant was directed to vacate the suit premises and handed over the vacant possession to the respondents-plaintiff within a period of 3 months. It appears from record that present petitioner-objector namely Taraben Sharma appeared before the Court as respondents and filed her Vakalatnama. It also appears from the record that once, Civil Revision Application No. 119 of 2011 was filed by the present petitioner on behalf of her husband namely Shivcharan Pannalal before this Court was disposed of on 23rd August, 2011. This Court [Coram:Hon’ble Mr. K.S.Jhaveri, J] was pleased to pass the following order on 23rd August 2011 :- “When the matter is called out, Mr. Majmudar, learned counsel for the applicant has tendered draft amendment. Looking to the facts of the case, it will not be proper to grant draft amendment inasmuch as the wife of the applicant was not party to the proceedings before the Court below and no such application was preferred to add her as party to the proceedings. 2. However, the learned counsel for the respondent had raised a preliminary objection regarding the maintainability of the revision application in view of the fact that the present application is affirmed by the wife of the applicant since the applicant is not available. Thus, on this ground alone, the revision is not entertained. 2. However, the learned counsel for the respondent had raised a preliminary objection regarding the maintainability of the revision application in view of the fact that the present application is affirmed by the wife of the applicant since the applicant is not available. Thus, on this ground alone, the revision is not entertained. It is however made clear that this Court has not examined the matter on merits. Hence, the application stands disposed of. Notice is discharged. Interim relief if any, stands vacated. However, it will be open for the wife of the applicant to raise all the contentions before the Executing Court which are permissible under the law.” 11. It appears from the order passed by this Court in Civil Revision Application No. 119 of 2011 that the present petitioner also tried to appear before this Court. As she was not party, by raising preliminary objections regarding maintainability of the revision application and she was wife of original defendant namely Shivcharan Panalal, on this ground alone, Civil Revision Application was not entertained. It is not in dispute that present petitioner was not party in Small Cause Civil Suit No. 60 of 1988 or in Regular Civil Appeal No. 20 of 2005. In the application below exh.16, it is contended by the petitioner that her husband has left the suit premises on 6th March, 1992. However, her wife had tried to find out her whereabouts, she was not succeeded. Written arguments were also submitted by present petitioner in execution petition preferred by the respondent along with deposition of herself in Small Cause Civil Suit No. 60 of 1988. Deposition of the present petitioner was recorded at Exh.88 in the aforesaid suit. In the cross-examination, she had admitted that her husband was alive but she has no idea of his whereabouts. She has further admitted that she has no dispute with her husband. Her husband was not staying with her since last 15-20 years as her husband had left the suit premises. After two years from the date of filing of the suit i.e. Small Cause Civil Suit No. 60 of 1988 on 12th February, 1988, her husband has left the suit premises that would be approximately in the year 1990. In application below Exh.16 preferred by the present petitioner in execution application, she has averred that her husband has left the suit premises on 6th March, 1992. In application below Exh.16 preferred by the present petitioner in execution application, she has averred that her husband has left the suit premises on 6th March, 1992. Prima facie, there is reason that present petitioner was not aware the exact date of leaving the suit premises by her husband. It also appears that present petitioner being wife also remain present in the suit proceedings i.e. Small Cause Civil Suit No. 60 of 1988. She was fully aware with the fact of the previous Small Cause Civil Suit No. 60 of 1988. Deposition of this petitioner in the suit was recorded on 3rd December, 2004 wherein, she has never stated that her husband had left the suit premises. Even, she has not stated that she was tenant of the suit premises. In the present application below Exh.16 also she has never stated that her husband was expired. Husband of the present petitioner, who was defendant in Small Cause Civil Suit No. 60 of 1988, remained present and filed his written statement below Exh.16. Present petitioner has also not filed any complaint in respect of leaving her house by her husband before any authority nor has issued any notice in newspaper. Before this Court also, Civil Revision Application No. 112 of 2011 was filed in the name of Shivcharan – husband of the present petitioner. Execution petition was preferred by the respondent on 14th June, 2011. Petitioner filed Regular Civil Suit No. 59 of 2012 under Section 107 and 108 of Indian Evidence Act on 3rd February, 2012 wherein, she has prayed declaration that on 6th March, 1992 or about that period “Civil Death” was occurred of her husband as deemed fit to the Court. Regular Civil Suit No. 59 of 2012 preferred by the present petitioner is still pending for adjudication and therefore, it is not desirable or proper to accept the submissions of the petitioner that her husband was expired. Prima facie, there is reason to believe that with a view to avoid Execution Proceedings initiated by the respondents, petitioner has filed Regular Civil Suit No. 59 of 2012. Prima facie, there is reason to believe that with a view to avoid Execution Proceedings initiated by the respondents, petitioner has filed Regular Civil Suit No. 59 of 2012. It also appears from the record that another Regular Civil Suit No. 124 of 2012 was also preferred by the present petitioner for declaration that judgement and decree passed by the respondents in Regular Civil Appeal No. 20 of 2005 is fraudulent and illegal and declaration may be granted in her favour as null and void. The said suit is also pending for adjudication at present. Judgement and decree passed by the District Court in Regular Civil Appeal No. 20 of 2005 has attained finality. The contention raised by the present petitioner that judgment and decree was obtained by the respondents in absence of her husband cannot be accepted by this Court. 12. In the case on hand as discussed earlier, possession of the suit premises was with the original tenant and her name might have been entered in any Government record as she is staying in the suit premises alongwith her family. It is not the case of the petitioner that there was any division of the suit premises in question or that rent was being paid separately by her. Thus, tenancy being one, all the members of family of the original tenant is residing with him, at the time of leaving the house by the husband, decree passed in Regular Civil Appeal No. 20 of 2005 is binding to all the members of the family including present petitioner covered by the tenancy Act. The position that falls is that the petitioner has no right to resist on the ground that the decree is not binding to her. Therefore, when the suit was filed in the year 1988 against the husband of the petitioner who was original tenant, there was no necessity for the landlord to implead the present petitioner or members of his family in the suit since respondent being landlord has no cause of action for seeking decree of recovery of possession from her. In that view of the matter, decree under execution does not suffer from any illegality or infirmity viewed from any angle. The petitioner has no justification on the facts as well as in law to resist the suit premises by the landlord. In that view of the matter, decree under execution does not suffer from any illegality or infirmity viewed from any angle. The petitioner has no justification on the facts as well as in law to resist the suit premises by the landlord. The Executing Court rightly rejected the objections filed by the petitioner below Exh.16 against the execution of the decree. The decision of the Hon’ble High Court of Allahabad rendered in case of Uday Bhan Tiwari Vs. Pashupati Colonizers Private Limited and Ors. reported in MANU/UP/0503/2021 has also considered the said issue and effect that as the applicant is neither necessary party nor a proper party as after the death of original tenant, his heirs inherited the property jointly and a decree passed against one or some of them is binding upon other tenants. The same view was also taken by the Hon’ble Apex Court rendered in case of Babulal Vs. Raj Kumar reported in 1996(O) GLHELSC- 2370 wherein, it has held that in execution proceedings under Order 21 of Rule 97, 98 of CPC, application of objector was dismissed on the ground that as the objector was not dispossessed, application under Order 21 Rule 97 of CPC was not maintainable. Hon’ble Apex Court also held that Court ought to have given its findings under Order 21 Rule 98 of CPC before dismissing it and appeal was allowed. 13. In the instant case, Executing Court has given its findings in the application preferred by the present petitioner below Exh.16 and thereafter, it is rightly dismissed. 14. In another judgment relied upon by learned advocate for the petitioner of this Court rendered in case of Patel Prabhudas Shankardas Vs. Seth Prakashchandra Babubhai reported in 2020 (2) GLH 597, wherein, it was suit for specific performance of contract. The petitioner being third party, tenant filed objection to decide his rights of tenancy. Application for production of documentary evidence was filed. It was held that third party can file objection in a decree and it is the duty of the Trial Court to adjudicate claims of the parties in consonance with law and power as conferred upon 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. In cited case, at relevant time, the 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. The question before the Court in the cited case was of production of documentary evidence. The prayer of the petitioner was rejected by the trial Court without discussion and solely on the ground that as the matter is fixed for hearing and document is filed for filling lacuna. The observation of the Executing Court was not sustainable in the eye of law. The petitioner was third party was permitted to produce documentary evidence. 15. Here, it is not the case of any documentary evidence produced by the present petitioner, she has objected the judgement and decree passed in favour of the respondent in respect of suit premises, as she is claiming her rights as tenant. Considering the facts that judgment and decree passed was against the original tenant when petitioner was residing with her husband. She has no rights to resist the execution proceedings initiated by the respondents. 16. Accordingly, this petition is hereby dismissed. The Order passed below Exh. 16 in Small Darkhast No. 21 of 2011 on 17th April, 2013 by the learned Additional Small Cause Judge, Surat is hereby confirmed. Interim relief granted earlier shall be vacated. Rule is discharged. B.N. KARIA, J FURTHER ORDER Learned advocate for the petitioner requests to continue the interim relief granted by this Court vide order dated 20.5.2013 passed in Special Civil Application No. 8935 of 2013. Learned advocate for the respondent No. 2 has strongly objected for extending the interim relief granted in favour of the petitioner and submits that since disposal of the appeal preferred by the respondent No.1 before District Court, respondent No.1 is unable to get fruit of the appeal which was allowed on 31.12.2010 in favour of the respondent No.1. Therefore, interim relief granted earlier cannot be extended. Considering the submissions made by learned advocates for both the parties, it appears that the litigation was started in the year 1988 and interim relief granted by this Court in the year 2013, and thus, it is found that the proceedings are delayed by the petitioner therefore, the prayer of the petitioner stands rejected.