1. The present Second Appeal is against the order dated 4th May, 2005 passed by the Additional District Judge, Niphad (Nashik) in Regular Civil Appeal No. 258 of 2005, whereby the appeal arising out of the order below Exh. 29 in Regular Darkhast No. 41 of 2001 filed in the Court of Civil Judge, Junior Division, Yeola dated 10/03/2005 has been maintained. Respondent No.1 is the decree holder in Regular Civil Suit No. 10 of 1982 by judgment and decree dated 04/09/1995. In appeal No. 139 of 1999, the same decree was confirmed on 25/09/2000. Therefore, execution of the same decree came to be filed on 03/07/2001 by the decree holder against respondent Nos. 2A and 3 (Exh. 29).

2. The warrant under Order 21 Rule 35 of the Civil Procedure Code (for short, "CPC") for possession was issued. One Sardar Attar as third party obstructed and therefore, the warrant was returned unserved.

3. Meanwhile, the appellant who is one of the co-sharer of the suit property pending the appeal No. 139 of 1999 as referred above, has filed special suit No. 104 of 2000 in the Court of Civil Judge, Senior Division, Niphad for separate possession. The same is still pending. Another suit No. 51 of 1999 also filed by one Mr. Bashir Haji Abdul Attar for partition of the property mentioned in scheduled "A" of the Regular Darkhast No. 41 of 2000 in question. Both these suits are pending in the respective courts. There was no written partition between the co-owners and basically by the appellant. The property in question has been in possession of the plaintiff as the owner. However, based on the alleged family arrangement, the Courts held that there was partition and the suit property has been in possession of the plaintiff as owner. Present respondent No.1, decree holder, therefore, had filed suit for possession against respondent Nos. 2A and 2B (Original defendants).

4. The suit property is an ancestral property of deceased Fattubhai Attar having three sons, Papamiya, Haji and Hasan. The appellant is the son of Hasan, therefore, has, as alleged, Joint share in the suit property. In suit No. 10/1982, Hasan and his heirs were not made party. The suit was decided in their absence. The appellant, therefore, obstructed the execution petition by appearing suo-motu and raising objections. By impugned order dated 10/03/2005 rejected the said application, by the executing Court. The same has been confirmed by the impugned judgment by the first appellate Court.

5. The appellate Court held that the appellant is not entitled to raise such objection to the execution of the decree under Order 21 Rule 97 to 101 and therefore, refused to interfere with the order of the executing courts.

6. The learned counsel appearing for the appellant strongly relied on (2003) 12 SCC 219 (Ashan Devi Vs. Phulwasi Devi) Para 6, 19 to 22 and 27 & P. Janardhana Rao Vs. Kannan (2004) 11 SCC 511 para 8,9, 10 and also on Shreenath Vs. Rajesh (1998) 4 SCC 543 para 10.

7. The relevant order 21 Rule 97 of the CPC is reproduced as under:- 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 in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2)Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.) Emphasis added.

8. The trial Court has dismissed the appellant’s application without framing the issue and or giving any opportunity to lead the evidence in support of the application as raised, by order dated 10/03/2004 holding that the decree holder is a Senior Citizen about 70 years and the third party i.e. appellant has no right in the suit property; he filed this application only to protect the proceedings; and further that