K. SREEDHAR RAO, J.

( 1 ) THE first respondent-owner obtained a decree for eviction against the third respondent in respect of a non-residential premise in HRC No. 1487/95. The eviction order in Ex. Case No. 1924/1996 is executed on 17. 7. 1996 and possession taken. The appellant contends that the third respondent has sub-let the premises to him and that he has been paying rents to the first Respondent. Thereby, the first Respondent has recognised the independent tenancy rights of the appellant. The appellant is not a party to the decree for eviction in HRC No. 1487/95, as such the eviction of appellant by the decree is bad in law. The appellant setting up the above plea filed an application under Order 21 rule 97 of CPC, for restoration of possession in EP No. 1924/96 filed by the first Respondent.

( 2 ) BEFORE the Execution Court in EP No. 1924/96, the appellant and the first respondent have let in oral evidence. It appears at the stage of arguments, the appellant filed an affidavit to withdraw the application on the ground that he has filed a comprehensive suit in O. S. No. 10054/1997 regarding the same subject matter for the similar relief. The executing Court dismissed the a

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