A person who is not a party to the decree cannot obstruct the execution of the decree by seeking an injunction, and a suit to establish the claim of a person who is not a party to the decree is not maintainable under Order 21, Rule 101 of the Code of Civil Procedure.

S.S.Hasan, J.

1. This is an appeal by the plaintiff of Title Suit No. 438/85 (hereinafter called 1985 suit) seeking an order of injunction against the defendants of the suit who were plaintiffs in Title Suit No. 263 of 1975 (hereinafter called 1975 suit) in which suit a decree for eviction has been obtained against one Ranjit Singh who happens to be a teacher in plaintiffs institution. In the 1975 suit the respondents, defendants obtained a decree for eviction after the defendant Ranjit Singh has failed to comply with the order passed Under Sec.12 of the Bihar Building Control Act, 1972. A First Appeal against that decree in regard to the arrears of rent is pending in this Court being First Appeal No. 1153/80. A counter-affidavit has been filed by the defendant No. 2 stating, inter alia, that he has no concern whatsoever either with the school or the premises in which it is running as a tenant, lessee or in any other capacity. Although these express words have not been used in the counter-affidavit but this is on the submission made at the Bar, and therefore, he has no objection if the decree is executed against any one or himself because he says that he is no longer in the premises. Coming to the appeal itself the only question that is to be determined is whether the decree holder respondent No. 1 could be restrained from executing his decree by a person who is not a party to the decree and has thus filed a separate suit to assert his right. The appellant plaintiff In his suit i.e. 1985 suit has raised plea of being real tenant of the premises in question and since there is no decree against it the decree can not be executed. The trial Court on grounds based on relevant facts held that no injunction can be issued. The dispute relates to the eviction proceeding initiated by respondent No. 1 in relation to the house situate in Mohalla Rajendra Nagar in the City of Patria of which the respondent plaintiff of the 1975 suit and defendant of 1985 suit is the owner and is occupier. The learned Counsel for the appellant submitted that the learned trial Court has given finding without examining at any length the documents filed by them which would show that the appellant is the real tenant in the permises in question. Be that as it may, in any view of law I cannot visualize the situation in which execution of any decree can be stayed at the instance of a person who is not a party to the decree. Execution of a decree cannot be obstructed by an order of injunction at the instance of a person who is not a party to the decree because such a situation would deprive the decree holder of the fruits of the decree particularly on the facts of the present case when the decree was passed as far back as 1980 and the suit was filed in 1975. At all times, the contest was by defendant No. 2 and apart from the aforesaid First Appeal another matter had come to this Court in Misc. Appeal No. 92 of 82. In that also there was no mention anywhere that the real tenant is the school. The final aspect of the matter is that the terms of Order 21, Rule 101 of the Code of Civil Procedure says that a suit in order to establish the claim of a person who is not a party to the decree is not maintainable. Prior to the amendment of the Code of Civil Procedure a suit could lay in terms of Order 21, Rule 103 of the Code of Civil Procedure as it stood then. After the amendment such powers have disappeared I have already taken this view in certain decision in the past and I do not see any reason to deviate now. Since the suit of 1985 itself is not maintainable an injunction order cannot folio.

2. The appeal is dismissed with costs.