JUDGMENT :

The question to be answered in this appeal is whether the appellants (referred to as ‘applicants’) could have filed an application under Order 21 Rule 97 of Code of Civil Procedure (‘CPC’ for short) in the execution proceeding initiated by the respondent. This question is to be answered in the following factual background.

2. O.S. No. 45/2012, on the file of First Addl. Sr. Civil Judge, Ballari, was a suit filed by the respondent for declaration of his title over four acres of land in Sy. No. 2 of the village Janekunte and, taluk and district Ballari (for short ‘suit property’). He also sought a direction to defendant nos.2 and 3 to disburse compensation amount to him in connection with acquisition of the said land. The first defendant in the suit was the brother of the applicants. The trial court decreed the suit declaring the respondent to be the owner of the suit property and that he was entitled to receive the compensation amount. The respondent initiated the suit on the premise that he purchased the suit property from Belaglappa under a registered sale deed dated 07.10.1998. For some reason the respondent could not get the revenue records mutated to his name and the name of Belagalappa continued in the revenue records. The suit property was acquired by the second defendant, the Special Land Acquisition Officer for the benefit of the third defendant and the compensation amount was deposited. The respondent pleaded that since he had already purchased the suit property by the time it was subjected to acquisition, he was entitled to compensation and for this reason he sought for a direction to defendant nos.2 and 3 to pay compensation amount to him. The suit was decreed on 17.12.2015. Seeking disbursement of the compensation amount, the respondent initiated execution proceeding and in the course of proceeding the applicants came up with an application under order 21 Rules 47, 94, 97, 106 and 107 read with Sections 47, 94 and 151 of CPC. The executing court dismissed the application by its order dated 16.04.2019 and hence this appeal by the applicants challenging the said order.

3. We heard Sri Raghuveer R. Sattigeri, learned counsel for the applicants.

4. At the outset we state that the executing court rightly dismissed the application not for the reason that the application was not maintainable but giving findings that the applicants failed to prove that their father was not alive when the sale deed came into existence in the year 1998 in favour of the respondent and they also failed to prove that they were the legal heirs of Belagalappa. The applicants claim that they are the daughters of Belagalappa.

5. In our opinion the executing court should not have entertained the application filed under Order 21 Rule 97 CPC. Although the applicants invoked other provisions of Order 21, the application was filed basically under Rule 97, the applicants being the objectors. When we questioned Sri Raghuveer R. Sattigeri, whether the executing court had passed an order attaching any immovable property and for holding an auction to recover the compensation amount, he honestly answered that no immovable property had been attached and sold in auction. He also honestly answered to our question that suit was not filed for possession of any immovable property and that no delivery warrant as required under Order 21 Rule 35 of CPC had been issued by the executing court. In this context the question would arise whether the applicants could have filed an application under Order 21 Rule 97 of CPC. For better understanding, we have extracted Rule 97 of CPC here.

“97. Resistance or obstruction to possession of immovable property. – (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

[(2) Where any