Anand Byrareddy, J : The petition coming on for preliminary hearing, the petition is considered for final disposal, having regard to the fact that the respondents are served and are un-represented and given the facts and circumstances of the case.

2. The facts briefly narrated are as follows:

The petitioner claims to be in possession of land in Survey No. 67/B, measuring 4 acres, of Hirekotnekal village, Manvi Taluk, Raichur District and that he has been cultivating the same for over 20 years. He was cultivating the land on share basis under respondent No. 3 and before under her husband, who had died earlier. Respondent No. 3 alongwith respondent Nos. 4 to 6, had sold the land to respondent No. 2, who was a minor at that time, through his mother. They had then migrated to another village and the petitioner was permitted to continue cultivation. On attaining majority, the second respondent entered into an agreement to sell the suit property to the petitioner for a consideration of Rs. 2.40 lakh and had received an advance consideration of Rs. 1.00 lakh. The petitioner was permitted to continue to cultivate the land. The petitioner claims to have paid the entire sale amount to the said respondent and claims that he is in possession as purchaser of the property though the sale deed has been executed. The petitioner therefore claims to be in possession of the suit property under the Agreement to Sell as well as on the earlier arrangement. It is claimed that the first respondent who is daughter of the third respondent and respondent Nos.4 and 5 being the brothers of the third respondent had filed a suit in O.S.27/2002 seeking partition and separate possession claiming a share in the above property. It is alleged that there was active collusion between respondent No.1, respondent Nos.3 to 7- who have accepted that the sale, in favour of the petitioner was illegal and that there was no authority to convey the property under the Agreement to Sell in favour of the petitioner. The suit was decreed ex-parte. Respondent No.1 is said to have filed an Execution petition in the Court of the Civil Judge(Jr.Dn.), Manvi, seeking delivery of possession of the land to her and a delivery warrant was issued. When the bailiff visited the spot, the petitioner had resisted the execution of the delivery warrant and a report having been filed in this regard by the bailiff into the Executing Court, the petitioner in-turn had filed an application under Order 21, Rule 97 of the Code of Civil Procedure, 1908 and resisted the Execution petition. However, the respondents having filed objection to the same and the Executing Court without deciding the application filed by the petitioner, and in the face of the report and to the detriment of the petitioner, has reissued a delivery warrant, which is under challenge in the present petition.

3. The question therefore for consideration would be whether the petitioner's application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 ought to have been considered, in the first instance when it was reported to the Executing Court that the petitioner was in possession of the suit property, and when he was not the judgment debtor. The question is squarely covered by the decision of the Supreme Court in the case of Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856. The Supreme Court in the above decision has lucidly laid down the law on the point, in the following manner:

"In short the aforesaid statutory provisions of Order XXI lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order XXI, Rule 97 sub-rule