An adjudication under Order 21 Rule 97 CPC is final and binding on the obstructor, and the decree-holder is not required to file a separate suit for recovery of possession.

B. BHATTACHARYYA, J.

1. This First Miscellaneous Appeal has been preferred by a third party/resister against the order passed by the learned Judge, 2nd Bench, City Civil Court, Calcutta thereby allowing the application of the respondent no.1 under Order 21 Rule 97 of the Code of Civil Procedure and granting police help for execution of the decree for recovery of possession passed in favour of the respondent no.1. The undisputed position is that the respondent no.1 filed a suit for eviction against the respondent nos. 2 to 8 obtained a decree which was affirmed up to this Court. Subsequently, the respondent no.1 decree holder put the said decree into execution and obtained recovery of possession in execution of the same. But on the same day the judgment-debtors again trespassed into the suit property which prompted the respondent no.1 to file an application for restoration of the said execution case and the learned judge was pleased to allow the same. Against the order, respondent nos. 2 to 8 filed a revisional application before this court but this court did not interfere with the order of the learned executing court restoring the execution case.

2. Thereafter in execution of the decree respondent no.1 got delivery of possession of part of the suit property except the present subject-matter of the execution case which was in occupation of the appellant and the said execution case was dismissed on part satisfaction.

3. Subsequently, the instant execution case being Ejectment Execution Case No. 471 of 1979 was filed by the respondent no.1 for recovery of the remaining part of the property which could not be executed by the earlier execution case. The present appellant and the respondent no.9 having resisted the Baliff, the present respondent no.1 filed an application under Order 21 rule 97 of the Code of Civil Procedure thereby giving rise to the Miscellaneous Case No. 1321 of 1981.

4. The present appellant contested the said miscellaneous case under Order 21 Rule 97 by filing written objection thereby contending that he was originally a sub-tenant under the judgment-debtors but in execution of the decree he along with judgment-debtors were dispossessed. After being dispossessed, he approached the respondent no.1 for fresh tenancy and the respondent no.1 accepted his proposal and created a fresh tenancy in his favour in respect of the shop room at a monthly rental of Rs. 50/-. However, it was agreed between the parties that for such tenancy no rent receipt would be granted. Thus, the appellant has obtained right over the suit property by virtue of his fresh tenancy.

5. At the time of hearing of the aforesaid Miscellaneous case the nephew of the respondent no.1 and the baliff of the court gave evidence in support of the application under Order 21 Rule 97 CPC while the appellant deposed in opposing the said application.

6. The learned Executing Court after consideration of materials on record disbelieved the case of tenancy advanced by the appellant in his objection to the application under Order 21 Rule 97 CPC and granted police help in favour of the respondent no.1.

7. Being aggrieved by the said order the present First Miscellaneous Appeal has been preferred by the appellant.

8. Mr. S.P. Roychowdhury, learned senior advocate appearing on behalf of the appellant has not disputed the finding of the learned Executing Court, as regards the status of the appellant, viz., he failed to prove his alleged tenancy right. Mr. Roychowdhury's contention was however three fold – Firstly, the application which has been described as under Order 21 Rule 97 CPC does not contain any averment in terms of rule 208 of the Civil Rules and Orders and the order of the Executing Court granting police help does not mention the existence of the ground which are necessary for granting a police help. The second contention is that previously the Executing Court wrongly restored the Execution Case after giving delivery of possession and although the said orde