SHARMA, J.—Bhagwandas and his son Ramdayal, hereinafter to be referred to as the appellants brought a suit in the court of Munsif, Alwar, for ejectment and arrears of rent against Sampatram, hereinafter to be referred to as respondent No. 1. This suit was decreed for ejectment and for a portion of the arrears of rent claimed on 22nd May, 1948. Both the parties went in appeal but the learned Additional District Judge, Alwar, who heard both the appeals dismissed them. Both the parties took second appeals to the Matsya High Court at Alwar, but both the appeals were dismissed on the 27th April, 1949. Before the appeals filed in the District Judges court were decided the appellants had taken out execution on 13th December, 1948 and in the column of relief they prayed that Ramgopal, who was the brother-in-law of Sampat Ram, who obstructing possession and so possession of the disputed property be delivered to the decree holders. This application only prayed for the relief of possession and did not make any prayer for the recovery of the arrears of rent or costs. Learned Munsif issued notice to the judgment-debtor but not to Ramgopal who is hereinafter to be referred to as respondent No. 2. Respondent No. 2 made an objection in the execution court on 30th April, 1949 stating that he was in possession of the property in his own right as tenant-in-chief of the decree-holders themselves and could not be ejected in execution of the decree against Sampatram. The court proceeded to make an enquiry in the case. Both the parties produced their evidence and the learned Civil Judge, Alwar to whose court proceedings had been transferred., held that the respondent No. 2 was in possession of the property in dispute independently in his own right as tenant-in-chief of the decree-holders and could not therefore be ejected in execution of the decree against Sampatram. Again this order of the learned Civil Judge the appellants filed an appeal in the court of the District Judge, Alwar, who dismissed the appeal on the ground that the appeal was not maintainable and also on merits. Against the order of the learned District Judge a second appeal has been filed in this Court which is No. 24 of 1952. An application for revision has also been filed against the order of the Civil Judge and it is application No. 175 of 1952. The revision application has been filed as a precautionary measure in case the second appeal is found to be not maintainable.

2. As the appeal as well as the application for revision arise out of the same order of the Civil Judge, both are being disposed of by this judgment.

3. It was argued by Mr. Ram Avtar Gupta on behalf of the appellants that the application for execution was made by the appellants under Order 21, Rule 11C.P.C. and there was no occasion for the execution court to apply the provisions of Order 21, Rule 97 C.P.C. It was argued that in the original suit against Sampatram it had been decided by the Matsya High Court that Ramgopal was merely a licensee of Sampat Ram. This finding is binding and he can therefore be ejected in execution of the decree against Sampat Ram who is his licensor. Two rulings of the Calcutta High Court in the case of Sailendra Nath Bhattacharjee vs. Bijan Lal Chakravarty and other (1) (A.I.R. 1945 Cal. 283.), and the other in the case of Kalidas Dutt vs. Harendra Nath Mukherjee and others (2) (A.I.R. 1932 Cal. 243.) were relied upon. It was further argued that in any case the Civil Judge had no power to dismiss the execution application against Sampat Ram.

4. On behalf of the respondent No. 2 it was argued by Mr. Basant Kishore Bhargava that the application for execution though mis-described as application under Order 21 Rule 11 C.P.C. was really an application under Order 21, Rule 97 C.P.C as the allegations made were that Ramgopal was not giving possession of the property to the decree-holders and possession should therefore be given through court. The court made an enquiry as in a case under Order 21

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