Honble SHARMA, J. – Both these cases relate to the execution of a decree as such, are decided by a common order.

(2) Exparte eviction decree was passed on 14.2.1992 in favour of Smt. Mannaver Begum and against Udai Lal with respect to a shop situated at Ramgarh Mod, Amer Road, Jaipur.Smt. M.Begum put the decree into execution. In compliance of warrant of possession issued by the executing court, the Court Ameen went at the spot and found that Ram Kishore, was in the possession of the shop in dispute and was running his grocery shop in the name and style of M/s Mangal Kirana and General Store. The warrant of possession could not be executed as Ram Kishore resisted it. Court Ameen referred the warrant with his report and sought police help.

(3) On the request of Smt. M.Begum, the decree holder, executing court ordered to arrange police help for delivery of possession. Ram Kishore therefore, moved an application on 25.2.94 under section 151 CPC, before the executing court, stating therein that since he had an independent title in the shop,he was not bound by the decree and the warrant could not have been executed against him. Smt. M.Begum filed reply to the application on 21.3.94 and prayed for rejection of the said application on the ground that Ram Kishore being sub tenant, was bound by the decree. In support of the reply Smt. M.Begum filed an affidavit on 5. 8.1994.

(4) On 2.9.94 Ram Kishore moved another application and, prayed that reply dated 21.3.94 and affidavit dated 5.8.94 filed by Smt. M. Begum may be treated as application under order 21 Rule 97 CPC., and the matter be investigated and adjudicated according to law.

(5) Vide order dated 12.9.94 the executing court rejected the application of Ram Kishore and directed that warrant of possession be executed with the help of police. This order has been assailed by Ram Kishore in Revision No. 1149 of 1994 on the ground that applications were rejected without adjudicating the claim to resistance.

(6) Ram Kishore also instituted civil suit seeking declaration and injunction in the court of the District Judge Jaipur City, Jaipur along with an application under Order 39 Rules 1 and 2 CPC., which lateron transferred to the court of Additional District Judge No. 3 Jaipur City . The application was allowed vide order dated 31. 10.1994 and M. Begum was restrained from dispossessing Ram Kishore from the shop in dispute without due process of law and to maintain status quo., M.Begum has assailed this order in Civil Misc. Appeal No. 56 of 1995 on the ground that the impugned order is violative of section 41(b) of the Specific Relief Act. The said order was perversed and without jurisdiction and it had over-looked the order of the High Court passedin Civil Revision No. 467/93 on 25.1.1994.

(7) I have given my anxious consideration to the arguments advanced before me by the learned counsel for the parties and carefully perused the impugned orders.

(8) In Nooruddin vs. Dr. K.L. Anand (1), the Supreme Court had occasion to deal with such a situation. The question before the Apex Court was as to whether the executing court was right in dismissing the application on the ground that the dispute was adjudicated in the writ proceedings referred to earlier ? It was observed by the Apex Court that when the appellant claimed independent right, title and interest resisted the execution, the decree holder or the appellant should make an application under Order 21 Rule 97 CPC and the court in that event, is enjoined to adjudicate the claim and record a finding allowing or rejecting the claim .

(9) In a recent judgment ``Babulal Vs. Raj Kumar and others (2) the Supreme Court has observed thus :

``Where in execution of a decree for specific performance of sale deed of property the objector who was not party to the decree filed an objection on the ground that he could not be dispossessed, the order of the executing court overruling the objection holding that since he was not dispossessed, his application under

Click Here to Read the rest of this document