Point of Law: Petitioner was having tenancy rights and accordingly, he raised objection before the Executing Court to decide his right of tenancy, therefore, it is necessary for him to produce certain documentary evidence.

JUDGMENT :

1. Rule returnable forthwith. Ms. Anuja Nanavati, learned advocate waives service of notice of rule for and on behalf of the respondents.

2. Present petitioner has challenged the order dated 17th April, 2013 passed below Exh.16 in Small Darkhast No.21 of 2011 by the learned Additional Judge, Small Causes Court, Surat rejecting the objections filed by the present petitioner in the Execution Application preferred by the respondents.

3. Heard learned advocates for the respective parties.

3.1 Short facts of the present case may be summarized as under:- That, Small Cause Civil Suit No. 60 of 1988 was filed by the respondents against the husband of the petitioner on the ground of arrears of rent and mesne profit. That, the petitioner was not joined as party respondent. That, husband of the present petitioner left the suit premises on 6th March, 1992 since then the present petitioner is residing in the suit premises. That, suit filed by the respondents came to be dismissed by the learned Small Cause Court vide order on 8th April, 2005. That, respondents preferred an appeal being Regular Civil Appeal No. 20 of 2005 against the husband of the petitioner wherein, also present petitioner was not joined as party. That, Appeal preferred by the respondents, came to be allowed by the learned Fast Track Court, Surat on 31st December, 2010.

4. Being aggrieved by the order passed by the learned Fast Track Court, Surat in Regular Civil Appeal No. 20 of 2005, the petitioner filed revision application being Civil Revision Application No. 119 of 2011 before this Court wherein, the present petitioner rendered draft amendment being wife of the petitioner. That, Civil Revision Application No. 119 of 2011 was not entertained with a clarification that this Court has not examined the matter on merits and the petitioner was permitted to raise all the contentions before the Executing Court which are permissible under the law. Thereafter, respondents filed an execution application being Small Darkhast No. 21 of 2011 before the learned Small Court, Surat on 14th June, 2011. Thereafter, when petitioner came to know about the filing of the aforesaid application, she filed an objection in the said execution application below Exh.16 submitting that the husband of the petitioner left the suit premises in the year 1992 and she does not know the whereabouts of her husband. That, in the said objections, the respondents are residing at the ground floor of the said premises, however, respondents had not joined the present petitioner as party in any of the proceedings intentionally and summons in the appeal proceedings was also wrongly served. That, present petitioner had also filed suit being Regular Civil Suit No. 124 of 2012 seeking prayer for quashing and setting aside the judgement and decree passed by the learned Civil Court in the Regular Civil Appeal No. 20 of 2005 and the hearing of the Exh.5 application was pending at the time of filing objection below Exh. 16. That, the petitioner had also filed suit being Regular Civil Suit No. 59 of 2012 for the purpose of getting declaration regarding the “Civil Death” of her husband which is pending for adjudication.

5. Learned advocate for the petitioner vehemently urged that learned Additional Small Cause Judge, vide order dated 17.4.2013, rejected the application filed by the present petitioner below Exh.16. That, the impugned order passed below Exh.16 rejecting the application preferred by the petitioner is prima facie illegal, contrary to the provisions of the Order 21, Rule 97 to 103 of the Civil Procedure Code, 1908. It is further submitted that the petitioner is in possession of the disputed premises since long and she was not joined as party to the proceedings in Small Cause Suit No. 60 of 1988 as well as Regular Civil Appeal No. 20 of 2005. Therefore, execution application cannot be executed against her. It is further submitted that under Order 21 Rule 97 of CPC, when the petitioner has resisted the prayer