M. P. CHINNAPPA, J.

( 1 ) HEARD the learned counsel appearing for the respective parties.

( 2 ) THE brief facts which led to this appeal are as follows : the appellant K. M. Govinda Raju filed a suit against the respondent No. 1 in O. S. No. 6814/95 on the file of the City Civil Court, Bangalore for permanent injunction restraining the respondents from forcibly evicting him from the schedule property on the allegation that he is the tenant under the R-1 in the suit schedule property running a motor-car repair Garage in the name and style of M/s Ganesh Auto Garage. In the suit after contest temporary injunction was granted holding that the appellant plaintiff is in lawful possession as a tenant and his lawful possession is liable to be protected, the said injunction order was confirmed by the High Court in MFA 2994/95 dismissing the appeal, however modifying the order to the effect that he shall be in possession till he is dispossessed by due process of law.

( 3 ) DURING the pendency of the suit, the respondent filed eviction petition against one Mari Muthu in HRC. Case No. 1723/95 and obtained a consent eviction order against him in respect of the same property which was the subject matter of the suit schedule property in O. S. 6814/95 without implead-ing this appellant as a party in the proceedings. As the injunction order was in force the Civil Judge court had issued direction to the Commissioner of Police to protect the plaintiff's possession. The landlord/1st respondent subsequently filed Ex. Case No. 1475/96 for execution of the eviction order passed in HRC. Case No. 1723/95 on the file of the Small Causes Judge, Bangalore, against the said Mari Muthu. However, it is an undisputed fact that the appellant was dispossessed from the property on 10-6-1996 with the help of the police while executing the said decree passed by the HRC Court only against Mari Muthu. Therefore, this appellant filed the application before the Executing Court under Or. 21 R. 94 and 99 r/w S. 151 CPC for re-delivery of possession.

( 4 ) THE respondent filed objections contending inter alia that the application as filed was not maintainable; however, he ought to have filed a separate miscellaneous petition and it is an independent petition as contemplated under Civil Rules of Practice. Hence, the I. A. was liable to be dismissed. Even on facts it is contended that the application is not maintainable as he has not brought to the notice of the Court the true facts. In O. S. 6814/95 the applicant claims his tenancy right in respect of premises No. 14/1 and obtained injunction order. The respondent / decree holder specifically contended that the appellant is not at all the owner of the premises No. 14/1 Park Road. Therefore, the appellant is not the tenant under him but he claims that he is the owner of premises bearing No. 14 Park Rd. and the appellant is not the tenant nor has he claimed any tenancy right. On the other hand, the respondent is residing in a portion of the premises which was let out to one Mari Muthu. He might have taken possession of some portion from the said Mari Muthu as sub-tenant and therefore, he has no legal right at all to maintain the suit against the owner. He admits that the appellant has obtained an injunction order which was modified by the High Court to the effect that the temporary injunction order would not prevent the appellant from taking possession in accordance with law. He further emphasised that the appellant is only a sub-tenant. The applt. was evicted from the premises in accordance with law and as per the Judgment and Decree passed by the Court below. On that ground, he submitted that the application is liable to be dismissed.

( 5 ) IN view of this contention, the Court held an enquiry in which the appellant has examined himself as P. W. 1 and he produced Ex. R-1 to R-12. The respondent examined himself as R. W. 1 and he has also produced the C. C. of the written statement filed by him in O. S. 6814/95. After hear

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