The main legal point established in the judgment is the need for adjudication under Order 21 Rule 97 of the Code of Civil Procedure before the delivery of possession and the rights of the obstructionist to be decided in appropriate proceedings.

Chandramauli Kr.Prasad, J.

1. Petitioners-objectors, aggrieved by the order dated 21.2.2004 passed by the Munsif, 1st, Munger in Title Execution Case No. 18 of 1976 directing for issuance of delivery of possession and for deputation of police force, have preferred this application.

2. Decree-holders-opposite party nos. 1 and 2 filed application for execution of the decree of ejectment dated 31.1.1972 passed in Title Suit No. 184 of 1970. Said suit was filed impleading Musahru Sah, uncle of these petitioners, on the ground of default of arrears of rent, which was decreed. Miscellaneous case, filed by said Musahru Sah for setting aside the ex parte decree was dismissed so also the appeal i.e. Misc. Appeal No. 3 of 1973.

3. Petitioners filed Title Suit No. 104 of 1974 for declaration of their title and further, for a declaration that the decree passed in Title Suit No. 184 of 1970, is collusive and not binding on them. The decree-holder, put the decree for execution which was registered as Execution Case No. 18 of 1976. It seems that the petitioners father Banarsi Sah had also objected to the execution of the decree, which led to registration of Misc. Case No. 1 of 1978. Munsif, 1st, Munger, by order dated 6.3.1980, dismissed the said case and aggrieved by the same, Banarsi Sah, father of the petitioners, filed Misc. Appeal No. 18 of 1980 and the Additional District Judge, II, Munger, by judgment dated 10th of February, 1993, dismissed the appeal, inter alia, holding as follows:

"Thus the evidence adduced on behalf of the plaintiff that the suit land was allotted to him on partition and that he reside in the suit house is not at all convincing and acceptable. On the other hand materials on the record amply show that the plaintiff has been set up by his brother Mushahru Sah who is the J. Dr. in execution case."

4. Petitioners then filed application under Order 21 Rule 97 of the Code of Civil Procedure, which was registered as Misc. Case No. 17 of 2000 and according to them, three witnesses have been examined. In the execution case, decree- holder prayed for deployment of police force tor the execution of the decree and delivery of possession, which was objected to by the petitioners.

5. By reason of the impugned order, the learned Munsif had directed for issuance of delivery of possession and deployment of police force for executing the decree.

6. Mr. Shashi Shekhar Dwivedi, Senior Advocate, appearing on behalf of the petitioners, submits that once the application filed by the petitioners under Order 21 Rule 97 of the Code of Civil Procedure has been entertained, no delivery of possession is fit to be granted till its adjudication. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Babulal vs. Raj Kumar and Another, (1996)3 SCC 154, and my attention has been drawn to following passage from paragraph no. 6 of the judgment, which reads as follows:

"6. xxx It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the objector or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1996 Amendment to CPC that may be pending on the date the commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21, Rule 89 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, the executing court