L. NARASIMHA REDDY, J.

( 1 ) THIS C. M. S. A. , is filed against the judgment and Decree, dated 17. 6. 2002, passed by the Court of the principal Senior Civil Judge, Narsaraopet, in a. S. No. 9 of 2002. The subject-matter of a. S. No. 9 of 2002 is an order passed in e. A. No. 494 of 2001 by the Court of Junior civil Judge, Chilakaluripeta.

( 2 ) THE facts that gave rise to filing of the C. M. S. A. , are as under: the appellant is the owner of a saw- mill installed in his land at Chilakaluripeta. The same was leased to the respondent in the year 1983. Thereafter, disputes arose between the appellant and the respondent. The appellant got issued notices terminating the lease. When he could not recover the possession, he filed O. S. No. 104 of 1990, in the Court of Junior Civil Judge, chilakaluripeta, initially, for the relief of restraining the respondent, by way of a permanent injunction, from removing the machinery of saw-mill, its equipment, tools, the zinc sheets shed, or from replacing them with any other sheets, and for restraining the respondent from running the saw-mill. Subsequently, he got the relief amended, to include a mandatory, injunction to restore the suit schedule property to its original position and for recovery of possession of the same.

( 3 ) AFTER contest by the parties, the suit was decreed on 25. 10. 1999. Aggrieved thereby, the respondent filed A. S. No. 67 of 1999, in the Court of the Principal Senior civil Judge, Narsaraopet. The appeal was dismissed on 30. 11. 2000. Second Appeal no. 54 of 2001 filed in this Court was also dismissed on 16. 11. 2001. Finally, he filed s. L. P. , before the Supreme Court, and it was also dismissed on 13. 12. 2001.

( 4 ) THE appellant filed E. P. No. 94 of 2001, for execution of the decree. The respondent filed E. A. No. 494 of 2001, under order 21, Rule 97 C. P. C. , with a prayer to - enquire into the matter of obstruction, with regard to the existing super structures. The basis for the application is that a fire accident took place on 28. 3. 1998, wherein the entire shed and machinery were gutted, and that the respondent got the shed and machinery restored. He pleaded that since the shed and machinery are different from those that were leased, the decree in its present form cannot be executed.

( 5 ) THE Trial Court rejected E. A. , through its order, dated 22. 1. 2002. The respondent filed A. S. No. 9 of 2002, in the court of the Principal Senior Civil Judge, narsaraopet, and it was allowed on 17. 6. 2002. Hence this C. M. S. A.

( 6 ) SRI O. Manohar Reddy, learned counsel for the appellant submits that the application filed by the respondent under order XXI, Rule 97 C. P. C. was not maintainable, and his effort was only to defeat the decree, which became final after the dismissal of the S. L. P. He submits that, if at all the respondent was of the view that the prayer in the suit cannot be granted, on account of the fire accident said to have taken place on 28. 3. 1998, he ought to have brought the same to the notice of the trial Court, or at any rate, the appellate Court, and it is not open to him to raise the ground, at this stage. As to the maintainability of the application, learned counsel submits that Rule 97 of Order XXI provides for removal of obstruction, and obviously such applications are to be filed by the decree-holders and under no circumstances, a judgment-debtor can be permitted to create an obstruction, by filing an application under that very provision. He submits that the findings recorded by the lower Appellate Court have the effect of setting at naught, the decree, which became final, with the pronouncement made by this Court and the Supreme Court, and thereby enabled the judgment debtor to resist the execution.

( 7 ) SRI V. L. N. G. K. Murthy, learned counsel for the respondent, on the other hand, submits that the necessity and occasion for the respondent to file E. A. No. 494 of 2001 arose, because of the fact that the decree mandates the delive

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