Rajasthan High Court - Jaipur
Shri Jai Prakash vs Khimaraj And Anr. on 6 September, 1990
Equivalent citations: AIR1991RAJ136, 1990WLN(UC)326
ORDER Jasraj Chopra, J.
1. This revision petition has been filed against the order of the learned Munsif and Judicial Magistrate, Desuri dated 20-8-1988 whereby the learned Munsif has rejected the application filed under Section 151, CPC.
2. The facts necessary to be noticed for the disposal of this revision petition briefly stated are : that the non-petitioner-decree holder Khimraj obtained a decree for arrears of rent and ejectment against the non-petitioner No. 2 judgment debtor Smt. Shanti Devi on 1-6-1979, which was later on con-firmed in appeal on 23-2-1983. Thereafter, the decree-holder Khimraj filed an execution application for execution of his decree and on that application, warrant of possession was issued by the Executing Court. Since the petitioner was in possession of the disputed property, he obstructed the execution of the decree. A note to this effect was made on the warrant of possession by the Sale Amin that the petitioner was obstructing the execution of the decree and was residing there as a tenant. Thereafter, the petitioner filed an application before the Executing Court under Order XXI, Rule 97 CPC on 28-5-1984 and the application came to be dismissed on 1-6-1984 as it was not maintainable.
3. It is alleged that on 7-7-1984, the decree-holder Khimraj filed an application that since the petitioner is resisting the execution of the decree, the warrant of possession may be executed against him as well. The learned Executing Court, after hearing both the parties, ordered on 1-8-1984 that since the decree-holder could not satisfy the Court that the petitioner has been residing as a Sub-tenant the allegations contained in application under Order XXI, Rule 97, CPC requires an enquiry and, therefore, the application filed by the decree-holder on 9-7-1984 for issuing warrant of possession against the petitioner was dismissed and the case was posted for reply of the petitioner. The petitioner filed his reply to the application under Order XXI, Rule 97, CPC. On 16-5-1987, the case was ordered to be posted for the evidence of the decree-holder and the objector-petitioner. However, on 19-8-1987, the decree-holder filed an application stating therein that he does not want to proceed with the execution and further requested that he does not press his application under Order XXI, Rule 97, CPC. On this application, the Executing Court ordered on 19-8-1987 that since the decree-holder himself does not want to proceed with the application, therefore, there is no justification for proceeding with the execution. The application was dismissed and the file was ordered to be considered to the record.
4. It is alleged that after two months of the dismissal of the said application, the decree-holder filed a fresh application against the judgment-debtor for execution of the decree and requested for issuance of warrant of possession. The petitioner again filed an application under Section 151, CPC stating therein that the decree-holder Khimraj is trying to obtain possession without following the due process of law and since his application under Order XXI, Rule 97, CPC was dismissed as not pressed and it has been held by the Court that the petitioner is in possession of the disputed property in his own right, the second execution petition could not have been entertained and it should be dismissed. It was further claimed that this execution application was filed two years after the passing of the decree and no notice for possession could have been issued without first calling upon the judgment-debtor to show cause as to why possession warrant be not issued against him. According to the petitioner, the second execution petition filed by decree-holder-non-petitioner No. 1 Khimraj is barred by the principles of constructive res judicata as per Section 11, C.P.C. It was also claimed that it is a misuse of the process of the Court. However, the application of the petitioner filed under Section 151, CPC came to be dismissed by the learned Munsif and Judicial Magistrate, Desuri vide his order dated 20-8-1988 and hence this revision.
5. I have heard Mr. R.R. Nagori, the learned counsel appearing for the petitioner and Mr. K.C. Samdariya, the learned counsel appearing for the decree-holder-non-petitioner No. 1 Shri Khimraj and have carefully gone through the record of the case.
6. It was contended by Mr. R.R. Nagori, the learned counsel appearing for the petitioner that in cases of execution, if any obstruction or resistence is made by a third party then it is only the decree-holder who should move an application under Order XXI, Rule 97, CPC. The obstructor has no right to move the Court. In this respect, my attention has been drawn to a decision of this Court in Dhananjai v. Ram Kumar (ILR (1963) 13 Raj 47), wherein a learned single Judge of this Court has held that before any investigation is made under Order XXI, Rule 97, it is necessary that an application should be made to the Court by the decree-holder that he was being obstructor in the execution of the decree and no investigation can be made on an application of a third party, who claims to be in possession. It was further held that even in such cases of resistence, the executing court has ample power to deliver possession even against a person, who was not a party to the original suit provided it is satisfied that the person offering resistence to delivery of possession has no bona fide claim.
7. In Ibrahim v. Phoolchand (1960 RLW 618), it has been observed by a learned single Judge of this Court:
"Before an investigation is made under Order XXI, Rule 97 it is necessary that an application should be made to the court by the decree-holder or auction purchaser. No investigation can be made application of a third party which claims to be in possession. A third party is only entitled to apply for investigation of its claim after it has been dispossessed, provision for which has been made in Rule 100 of Order XXI. (Order XXI, Rule 99 of the new CPC)".
A learned single Judge of this Court in Brijesh Kumar v. Hiralal (1988 (1) WLN 330) has observed :
"A stranger to the decree who claims to be not bound by the decree has no right to approach the Court and to get his claim or objection adjudicated upon and that stage will come only when he is dispossessed."
In Dargah Committee v. Abdul Gafoor (AIR 1978 Raj 129), it has been held by this Court that where the person in possession obstructed execution of the decree for ejectment and filed an application under Section 151 alleging that he was not bound by the decree, the executing court could pass any order it thought fit but could not direct the decree-holder to file an application under Order XXI, Rule 97, CPC.
8. It may be stated here that a according to the provisions of the old CPC filing of an application under Order XXI Rule 99 (old) (Order XXI, Rule 97, CPC (new)) was optional and, therefore, it was held that the decree-holder cannot be compelled to file such an application. However, this is clear that the obstructor cannot move the Court under Order XXI, Rule 97 CPC. Thus, so far as this aspect of the matter is concerned, the law is well settled by a catena of decisions of this Court that the obstructor has no right to move the Court under Order XXI, Rule 97, CPC for adjudication of his rights. That can only be done by the decree-holder or the auction purchaser and not by the obstructor.
9. It was next contended by Mr. R.R. Nagori, the learned Counsel appearing for the petitioner that as the earlier application filed under Order XXI, Rule 97, CPC by the decree-holder has been dismissed as withdrawn, this second execution application is barred by the principles of constructive res judicata. This contention of Mr. Nagori has been seriously opposed by Mr. K.C. Samdariya, the learned counsel appearing for the decree-holder-non-petitioner No. 1, who has submitted that the decree-holder has a right to file any number of applications for execution of his decree within the period of limitation till his decree is fully satisfied. According to him, the principle of constructive res judicata can be made applicable only when the earlier application has been disposed of on merits after an enquiry. He has submitted that disposing an application for non-prosecution is not equivalent to the abondonment of a claim. It was submitted that when the application under Order XXI, Rule 97, CPC has not been disposed of on merits, the principle of constructive res judicata which is applicable to the suits under Order XXIII, Rule 1, CPC is not applicable to such applications. In this respect, Mr. Samdariya, the learned counsel appearing for the decree-holder has placed reliance on a decision of this Court in Narayan v. Smt. Kalan Bai 1985 RLW 140 : (AIR 1986 Raj 52), wherein a learned single Judge of this Court has observed (at page 56 of AIR 1986 Raj).
"Order XXL Rule 97, CPC provides that if the execution is obstructed, the decree-holder can, by an application, complain of such obstruction. Rule 97, CPC is however permissible. The decree-holder is not bound to resort to the remedy under Rule 97, CPC. He may apply for a fresh writ of possession under Order 21, Rule 35, CPC. The law does not compel a decree-holder to complain against the resistance or obstruction as soon as it is made. He can ignore the resistance or obstruction and may, in his wisdom apply for a fresh warrant of possession. It is of course, open him to move the Court under Order 21, Rule 97, CPC. The choice lies with him. If he obtains a fresh writ of possession and is again obstructed by the same person, he can move an application under Order 21, Rule 97, CPC for the removal of such obstruction caused on the second or successive occasion. His application cannot be held to be time barred if it is filed within 30 days of the second or successive resistance, which is complained of. The decree-holder is entitled to take out any number of warrants of possession so long as his execution application is not barred. Each obstruction made execution of such warrants provides a fresh cause of action for filing an application under Order21, Rule 97, C.P.C."
Mr. Samdariya, the learned counsel appearing for the respondent No. 1 (decree-holder) laid great emphasis on the observations of the Court that the decree-holder is entitled to take out any number of warrants of possession so long as his execution application is not barred.
10. Reliance was also placed on a decision of the Andhra Pradesh High Court in L. Somunaidu v. M. Gangamma (AIR 1969 AP 192), wherein it has been observed (at pages 193 & 194):
"That if the court declines to give any decision on the question involved or dismisses the petition for default or the petition is allowed to be withdrawn, in all such cases, it cannot be said that there was any inquiry in regard to the question involved and upon which the Court can be said to have been satisfied one way or the other. Such an order cannot fall either under Rule 98 or Rule 99 as the case may be and are not conclusive so as to bar a fresh application under Rule 97 or to bar a suit instituted more than one year from the date of such order."
Mr. R.R. Nagori, the learned counsel appearing for the petitioner has submitted that the decision in L. Somunaidu's case (supra) relates to the provisions of Order XXI, Rule 97, CPC and onwards of old CPC prior to its amendment in the year 1976. He has submitted that according to the provisions of the old CPC, filing of an application under Order XXI, Rule 97, CPC was optional and the decree-holder was free to avail that remedy. He has submitted that now the Code of Civil Procedure has been amended by Amendment Act of 1976. According to him, as per the provisions of the Code of Civil Procedure, 1908, as it exists today, if any obstruction is put forth then the decree-holder is required to file an application under Order XXI, Rule 97, CPC and that application has to be inquired into by determining the questions mentioned in Order XXI, Rule 101, CPC and once such an order is passed, it has the force of a decree. No fresh suit can be filed as regards that controversy even if questions of right, title and interest in the property may have been involved. A perusal of the provisions of Rules 97, 101 and 103 of Order XXI, CPC makes it amply clear that such proceedings are in the nature of a suit and the order passed after such an enquiry has the character of a decree and, therefore, the provisions of Order XXIII, Rule 1, CPC shall have full application to such proceedings. Even an application which has been dismissed as withdrawn without permission of the Court to file the fresh application, then second and subsequent application under the same provisions is also barred by the principle of constructive res judicata.
11. Mr. R.R. Nagori, the learned counsel appearing for the petitioner has drawn my attention to a decision of their Lordships of the Supreme Court in Satyadhayan v. Smt. Deorajin Debi (AIR 1960 SC 941); wherein it has been held that the principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Mr. Nagori has submitted that as per this authority, if a matter has been decided in one way or the other on merits than that matter which has been decided on merits cannot be allowed to be re-agitated again at a subsequent stage of the same proceedings.
12. Mr. Nagori has further placed reliance on a decision of their Lordships of the Supreme Court in Sarguja Transport Service v. S.T.A. Tribunal, Gwalior (AIR 1987 SC 88), wherein it has been held that a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 without the permission to institute a fresh petition cannot file a fresh writ petition in respect of the same cause of action in the High Court under that Article. It was further observed that in order to prevent a litigant from abusing the process of the Court by instituting suits again and again in the same cause of action without any good reason, the CPC insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Order 23, Rule 1(3). The principle underlying the above rule is founded on public policy but it is not the same as the rule of res judicata. This principle underlying Rule 1 of Order 23 should be extended in the interests of administration of justice to cases of withdrawal of writ petition also not on the ground of res judicata but on the ground of public policy. That would also discourage the litigant from indulging is bench bunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 since such withdrawal does not amount to res judicata, the remedy under Article 226 should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ. It is, therefore, clear that the principle of res judicata as such has not been made applicable in matters of writ petitions.
13. Sarguja Transport Services case (supra) being in contradiction with the earlier decisions of their Lordships of the Supreme Court (rendered by larger Benches) came to be noticed by a Division Bench of the Patna High Court in Haldhar Pd. v. Giridih Municipality (AIR 1989 Patna 321). In that case, on behalf of the petitioner, it was contended that in view of the decisions of the Supreme Court in Hoshnak Singh v. UOI (AIR 1979 SC 1328) P.D. Sharma v. UOI (AIR 1979 SC 1328), P.D. Sharma v. SBI, (AIR 1968 SC 985) and Virudhanagar Steel Rolling Mills Ltd. v. Govt. of Madras (AIR 1968 SC 1196): (1968 Lab IC 1223) the second writ petition cannot be said to be not maintainable. It was also submitted that in view of the decision of the Supreme Court in UOI v. Godfrey Phillips India Ltd. (1985 (4) SCC 369): (AIR 1986 SC 806) the two Judge Bench of the Supreme Court in Sarguja's case could not have disagreed with the larger Division Benches of the Supreme Court including Constitution Bench. The Division Bench of the Patna High Court felt that in Sarguja Transport's case (AIR 1987 SC 88), the Supreme Court applied the principle of Order XXIII, Rule 1(3) of the Code on the ground of public policy and in other cases decided by their Lordships of the Supreme Court which have been noticed above the rule of res judicata, i.e. bar of Section 11 of the Code, was applied. It was further felt that the principles embodied in Section 11 and in Order XXIII, Rule 1(3) are different, one bars a suit, the other bars a remedy. This was specifically noticed in Sarguja Transport's case (supra). The Division Bench of the Patna High Court held that the contention of the petitioner that in Sarguja Transport, a Division Bench of two Judges of Supreme Court differed with larger Division Bench or Constitution is not correct. I will discuss that aspect of the matter little later.
14. Mr. R.R. Nagori, the learned counsel appearing for the petitioner has contended that the decision rendered in Narain's case (supra) relates to the period when the provisions of old CPC were in force. The decision in Narain's case (supra) came to get noticed by a learned single Judge of this Court in Chhotulal v. Ratanchand (1987(1) WLN 215), wherein it has been held that even dismissal of an application under Order XXI, Rule 97, CPC is adjudication of an application under Order XXI, Rule 97, CPC on account of the provisions contained in Rules 98 and 101 of Order XXI, the decision in an earlier application will operate as res judicata and will bar the entertaining of a subsequent application under Order XXI, Rule 97, CPC by the concerned Court. It was further observed that it may be that a decree-holder while faced with an obstruction may instead of applying under Order XXI, Rule 97, CPC, take recourse to the remedy of filing a suit for declaration and possession. But having taken recourse to the remedy provided under Order XXI, Rule 97, CPC and having failed in that, he cannot turn round and urge that he is not bound by the adverse decision.
15. In Chhotulal's case, one Ratanchand in execution of his decree against the judgment-debtor got a warrant of possession issued from the Munsif, Bikaner in execution case No. 68 of 1979 of that court. That warrant of possession was returned by the Sales Ameen to the executing court with a report that the petitioners Chhotulal and Smt. Sadra, who are said to be brother and mother respectively of the judgment-debtor, obstructed the delivery of possession. Thereupon, the decree-holder Ratanchand filed an application under Order XXI, Rule 97, CPC on November 7, 1981. Notice of that application was issued to the obstructors. The obstructors filed a reply in which they pleaded that the application of decree-holder Ratanchand under Order XXI, Rule 97, CPC was barred by limitation. Some other objections were also raised. The Munsif, Bikaner after hearing the arguments came to the conclusion that the petition of Ratanchand under Order XXI, Rule 97, CPC in execution case No. 26 of 1979 was barred by limitation and accordingly, dismissed the same on May 22, 1982. The decree-holder did not file any appeal against the judgment of Munsif, Bikaner dismissing his application under Order XXI, Rule 97, CPC. However, the decree-holder got fresh warrant of possession issued for possession of the disputed property in execution case No. 68 of 1979. On this warrant of possession, the Sales Ameen made a report on Sept. 3, 1982 that the petitioners again obstructed the taking of possession and refused to deliver possession of the disputed property. The non-petitioners decree-holders alleged that the petitioners were in possession of the property on behalf of the judgment-debtor Shankarlal Bhanwartal and they prayed that the petitioners be dispossessed from the disputed property. In reply to the second application under Order XXI, Rule 97, CPC, the petitioners referred to the dismissal of the previous application on the ground that the same was barred by limitation and that judgment of the second application under Order XXI, Rule 97, CPC would not be entertained as the first application under the said order had been dismissed on May 22, 1982, as a result of the amended Rule 103 of Order XXI, because the previous judgment dated May 22, 1982 had the force of a decree. Aggrieved by this decree of the Munsif, Bikaner dated January 31, 1983, the decree-holder Ratanchand filed an appeal before the District Judge, Bikaner who by his order dated Nov. 2, 1985 allowed the appeal of the decree-holder and set aside the judgment of Munsif, Bikaner dt. January 31, 1983. It is against this judgment of the first appellate court that the obstructionists filed the revision petitions before this Court and a learned single Judge of this Court has held that even dismissal of an application under Order XXI, Rule 97, CPC is adjudication of an application under Order XXI, Rule 97, CPC on account of the provisions contained in Rules 98 and 101 of Order XXI, the decision in earlier application will operate as res judicata and will bar the entertaining of a subsequent application under Order XXI, Rule 97, CPC by the concerned court. While discussing the provisions of Order XXI, Rule 97, CPC, the learned single Judge has held that it would thus appear that all the events in Narain's case (supra) took place before the provisions contained in Rules 97 to 103 of Order XXI, CPC were in an unamended state. The decision in Narain's case would not help us in deciding a case in which the successive obstructions have taken place after the above provisions had been amended by the Amending Act No. 104 of 1976 and, therefore, decision in Narain's case does not conclude the matter. The learned single Judge further observed:
"that in the amended Rule 101 of Order XXI of the Code, the expressions 'all questions' including question relating to right, title or interest in the property and the expression 'and not by a separate suit' are very pertinent. In my view, the expression 'all questions' includes within its ambit a plea raised by an alleged obstructionist that the application under Order XXI, Rule 97, CPC is barred by limitation. When such an application is held by the court to be barred by limitation, adjudication is of a question involved and arising between the parties to a proceeding on an application under Order XXI, Rule 97, CPC. The decree-holder having taken recourse against an obstructionist by moving an application under Rule 97 of Order XXI has to get it adjudicated under Rule 101 of Order XXI and he cannot then file a separate suit, for determination of any question which he has himself chosen to raise by moving an application under Order XXI, Rule 97. Then it is pertinent to note that by Rule 103 which has also been substituted for the old rule, it has been expressly and unambiguously provided that where any application has been adjudicated upon under Rule 98, the order made there shall have the same force and be subjected to the same conditions as to an appeal or otherwise as if it were a decree. Since the adjudication under Rule 98 was given the force of a decree, it also became necessary to insert some new rules in Order XXI, Rule 97, CPC, Rules 105 and 106 were meant to introduce provisions for dismissing the application under Order XXI, Rule 97, CPC in default and passing ex parte orders for resorting the application and for setting aside the ex parte orders. They were necessary because prior to the amendment, the remedy in such events was by a suit which was taken away by the express provisions contained in Rule 101 of Order XXI."
While relying on the decision of the Madhya Pradesh High Court in Dattatraya v. Mangal (AIR 1983 MP 82), the learned Judge held that if an earlier application has been adjudicated upon under Rule 98 of Order XXI, CPC, then in such cases, fresh application is barred by the principle of res judicata.
16. This is the bed rock, on which Mr. Nagori, the learned counsel appearing for the petitioner has built the entire edifice of his arguments.
17. It will be very useful to quote Rules 98, 101 and 103 of Order XXI, C.P.C.:
"Order XXI, Rule 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 satisfied that the resistance or obstruction was occasioned without any just cause by 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 proceedings, 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 extent to thirty days.
Order XXI, Rule 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.
Order XI, Rule 103.: Orders to be treated as decrees:-- Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.
Sub-rule (2) of Rule 97 of Order XXI, C.P.C. clearly provides that 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. Rule 98 of Order XXI, C.P.C. provides that 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) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application or pass such other order as, in the circumstances of the case it may deem fit. Thus, it is clear that any order that has to be passed must be passed on the determination of the questions referred to in Rule 101 of Order XXI, C.P.C. Rule 101 of Order XXI, C.P.C. provides 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. Thus, as per Rule 101 of Order XXI, C.P.C. the Court is required to adjudicate and determine the questions raised in the application and such questions may be the questions relating to the right, title or interest in the property or any other question that may arise between the parties, it is therefore, clear that unless such applications are decided after proper adjudication and determination of the questions raised in the application, the order passed on such an application cannot considered to be an order passed under Rules 97, 98 and 101 of Order XXI, C.P.C. Rule 103 of Order XXI, C.P.C. is a deeming provision and it starts with the language 'where any application has been adjudicated upon under Rule 98 or Rule 100'. Rule 103 of Order XXI, C.P.C. provides that where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the adjudication of the questions involved in Rule 101 of Order XXI, C.P.C. is very much essential to give the character of a decree to an order passed on the application under Order XXI, Rule 97, C.P.C, Thus, the import of the deeming provisions cannot be extended beyond the language of the Rule 103 of Order XXI, C.P.C.
18. In this case, on the earlier application, the questions raised in the application as also in Rule 101 of Order XXI, C.P.C. were not adjudicated and determined by the Court after due application of its mind because the application filed under Order XXI, Rule 97, C.P.C. was dismissed as withdrawn. Keeping in view the aforesaid discussion, I am firmly of the view that when the questions raised in the application were not adjudicated upon by the Court after due application of its mind and the said application was dismissed as withdrawn then it cannot be said that the earlier application filed under Order XXI, Rule 97, C.P.C. has been dismissed on merits or the questions raised in the application as also in Rule 101 of Order XXI, C.P.C. were adjudicated upon by the Court. In my view, such dismissal of the application under Order XXI, Rule 97, C.P.C. based on the request for withdrawal of the application cannot acquire the character of a decree and, therefore, the principle of constructive res judicata cannot be made applicable to such proceedings.
19. The learned authors V. R. Manohar and W.W. Chitaley in their treatise AIR Commentaries on the Code of Civil Procedure (V of 1908) (Volume-4) (at page 314) have said that the procedure prescribed by the old Rules i.e. Order XXI, 97 to 102 was summary and it was not intended that they should be permitted to adduce oral evidence. In view of the present Sub-rule (2) added to Rule 97 by the Amendment Act, 1976, the procedure is not a summary one. It is a full enquiry and the Court has to adjudicate on the merits of the application. While commenting on Rule 101, the learned authors have stated at page 333 that according to the amended Rule 101 the (Court) is bound to go into and decide all questions including question relating to right, title or interest in the property arising between the parties to a proceeding in an application under Rules 97 and 99 of Order XXI, C.P.C. Thus, stress has been laid on the adjudication and determination of the questions involved and not upon the dismissal of the application on the ground that it is not pressed. In Chhotulal's case (supra), it has been held that if once an application has been decided on merits after adjudication and determination of the questions involved, may be on the question of limitation, the order passed on such application will operate as res judicata. As stated above, in this case, the earlier application was not decided after adjudication and determination of the questions involved in the matter because it was dismissed as not pressed and, therefore, Chhotulal's case (supra) does not help the contention of Mr. Nagori. If an application under Order XXI, Rule 97, C.P.C. has been decided on merits after adjudication and determination of the questions involved in Rule 101 of Order XXI, C.P.C. as also other grounds raised in the application then of course, that would furnish a ground for the application of the principle of constructive res judicata but if it is not adjudicated (and) determined after due application of mind, the order passed on such an application does not acquire the character of a decree.
20. I have already held that although the proceeding under Order XXI, Rules 97 and 98 read with Rules 99, 100, 101 and 103 may partake the nature of a suit and the enquiry may be held as if it is an enquiry in the suit but such proceedings do (not) acquire the character of a suit as such and, therefore, the provisions of Order XXIII, Rule 1, C.P.C. cannot be made applicable to such proceedings. There is no deeming provisions in the aforesaid rules to deem these proceedings as that of a suit and hence, the provisions of Order XXIII, Rule 1, C.P.C. are not applicable to such proceedings. Moreover, their Lordships have held that they are the rules of public policy. If a decree-holder has a right to file applications any number of times for obtaining the fruits of his decree within the period of limitations of 12 years after passing of the decree then it is a matter of public policy that he cannot be denied the fruits of decree on mere technical grounds.
21. In this case, not only the decree relates to the delivery of possession but it also relates to the arrears of rent about which no orders have been passed and, therefore, it cannot be said that no execution can be levied. Even in Chhotulal's case (supra), the learned Judge did not held that the second execution application is barred by the principle of constructive res judicata. What has been held is that the second application under Order XXI, Rule 97, C.P.C. filed by the decree-holder after dismissal of the earlier application under Order XXI, Rule 97, C.P.C. on merits is barred by the principle of constructive res judicata. The second execution application was very much entertained and, therefore, that authority (Chhotulal case) is not an authority on the subject that no second execution application can be filed by the decree-holder. Moreover, the learned Judge in Chhotulal's case has held that once an application under Order XXI, Rule 97, CPC or under Order XXI Rule 99, CPC has been decided on merits keeping in view the questions involved in Rule 101 of Order XXI, CPC and all other questions that are raised in the application then second application under Order XXI, Rule 97 or Rule 99, CPC can be entertained. The learned Judge in Chhotulal's case (supra) has not overruled the dictum laid down in Narain's case (supra) that the decree-holder has a right to file any number of execution applications within the period of limitation and, therefore, to that extent, that decision does not stand overruled either on account of the change in the C.P.C. or on account of the decision in Chhotulal's case (Supra).
22. I may also state here that in this case, the decree-holder has filed another execution application for execution of his decree against the judgment-debtor. If the petitioner is still in possession of the property and he still resists in the execution of the decree, the decree-holder may avail any kind of the alternative remedy, which is available to him in law. This is not the case, where any second application under Order XXI, Rule 97, CPC has been filed. Rather, it is a case of second execution application filed against the judgment-debtor in those proceedings, the obstructor-petitioner is not at all a party and, therefore, he has no right to be heard because he is a stranger to the proceedings. If the petitioner feels that he is the tenant of respondent No. 1 and he is not a sub-tenant, he can avail any alternative remedy under the law. It has been brought to my notice by the learned counsel appearing for the petitioner that in this matter, a suit has been filed on behalf of the petitioner for vindication of his rights. Thus, it would be proper for the petitioner to avail any legal remedy that is available to him in that suit. He has no right to claim any audience in the execution proceedings filed against the judgment-debtor.
23. The petitioner has mentioned in his memo of appeal that he also filed an application under Order XXI, Rule 97, CPC stating therein that the execution petition was filed beyond two years of the passing of the decree and, therefore, a notice has to be issued to the judgment-debtor. That plea was not specifically pressed during the arguments. Still, it may be stated that this plea is not available to the Obstructor but it is available to the judgment-debtor. Secondly, in this case, in the earlier execution petition, warrant for delivery of possession was issued against the judgment-debtor and, therefore, the case is fully covered by the proviso of Rule 22 of Order XXI, CPC and so, that plea also has no legs to stand.
24. It was contended by Mr. K.C. Samariya, the learned counsel appearing for the decree-holder-respondent No. 1 that in view of the decision of this Court in Raghuvar Dayal v. Hargovind (AIR 1958 Raj 287) this revision petition is not maintainable. He has submitted that the petitioner has already availed his alternative remedy and he is not at all a party to the execution proceedings. Even the Sale Ameen has not reported in execution of the second warrant of possession issued by the Court that any obstruction has been put by any party. In this case, no second application under Order XXI, Rule 97, CPC has been filed. The petitioner has no right to file an application under Order XXI, Rule 97. CPC. In the facts and circumstances of this case, I am firmly of the view that the contention of the decree-holder respondent No. 1 that this revision petition is not maintainable deserves to be sustained. This second execution petition relates to the execution of the decree against the judgment-debtor, in which the obstructor-petitioner is not at all a party. No obstruction has been reported by the Sale Ameen in execution of the second warrant of possession issued by the Court and no second application under Order XXI, Rule 97, CPC has been filed. If the petitioner feels that this second application for execution of the warrant of possession adversely affects him, he may seek any alternative remedy, which is available to him in the suit, which has been filed by him. He cannot be heard in the execution petition and, therefore, in my opinion, the learned lower Court was right in rejecting the application under Section 151, CPC filed by the petitioner. Thus judged from any angle, I am firmly of the view that his revision petition is not maintainable.
25. In the result, I find no force in this revision petition as it is not maintainable and, therefore, it is dismissed without any order as to costs.