The main legal point established in the judgment is that an application resisting the execution of a decree can be examined by the executing court and is appealable under Order 21 Rule 103 of the Code of Civil Procedure.

Rule.

2. Mr.Apte appears for respondent nos.1 to 3 and waives service. Respondent nos.4 to 8 are the formal parties and hence service to them is dispensed with. By consent, taken up for hearing forthwith.

3. Respondent nos.1 to 3 (hereinafter referred to as "the respondents") filed a suit for specific performance of an agreement of sale against the respondent nos.4 to 8. A decree for specific performance was passed in their favour by the Court of Civil Judge, Sr. Division, Pune on 6 October 1997. Respondents filed an execution application bearing Regular Darkhast No.283/08 in the Court of Civil Judge, Sr. Division for execution of the decree. The present petitioners, who are the brothers and cousins of the petitioners, claim that their common ancestor Ganpati was the original tenant and as such they had inherited the tenancy along with respondents and were in joint possession of the suit property. As they were not parties to the suit they cannot be dispossessed in execution of the decree. They accordingly filed an application resisting the execution. They also prayed that the decree be set aside to the extent of the petitioners' share. The respondents resisted the application by filing a reply at Exhibit 37A. The executing court after hearing the parties held that the contention of the petitioners that they had 1/5th share in the tenancy rights in the suit property was not proved and rejected the same. He accordingly overruled the objection to the execution of the decree raised by the petitioners, by an order dated 25 April 2010.

4. Aggrieved by the decision of the executing court rejecting the petitioners' application, the petitioners filed an appeal, bearing RCA No.369, in the Court of District Judge, Pune. By his judgment and order dated 26 July 2010, the learned District Judge-12, Pune dismissed the appeal. Aggrieved by the decision of the District Court the petitioners are in this Court.

5. The Lower Appellate Court did not consider the appeal of the petitioner on merits. It did not consider whether the finding of the executing court that the petitioners had 1/5th undivided share in the tenancy rights in the suit property and a decree for specific performance and possession therefore could not be executed against them. He only held that the application made by the petitioners objecting the execution of a decree was not maintainable under Order 21 Rule 97 of the Code of Civil Procedure. He accordingly dismissed the appeal only on a technical ground that the application at Exhibit-26 was not maintainable.

6. Relying upon a decision of the Supreme Court in Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal & Anr., (1997) 3 Supreme Court Cases 694, learned counsel for the petitioner submitted that the appellate court erred in holding that the application of the petitioner resisting the execution of the decree was not maintainable under Order 91 Rule 97 of the Code of Civil Procedure. He submitted that the ancestor of the petitioners was the owner of the suit property and on his death, the property devolved on the petitioners' and the other heirs of the deceased. The respondent nos.1 to 3 had agreed to purchase the property from other heirs without the knowledge and consent of the petitioners. The agreement for sale executed between the respondent nos.4 to 8 and the respondents was not known to the petitioners. Petitioners were not party to the suit filed by respondent nos.1 to 3 against the respondent nos.4 to 8. The decree passed in the suit was not binding on them. They were in joint possession of the suit property independently and their right to remain in possession of the property was independent of the decree for specific performance/possession passed in the suit. Consequently, the petitioners were entitled to raise on obstruction to execution of the decree.

He further submitted that by filing an application at Exhibit 26, the petitioners had resisted and raised an obstruction to the execution of the decree.