Honble TATIA, J.–Heard learned counsel for the parties.

(2). The petitioner is aggrieved against the order dated 1.2.2005 by which the executing court in a petition filed under Order 21 Rule 97 CPC proceeded to decide; (i) whether the petition under Order 21 Rule 97 CPC be decided after allowing parties to lead oral evidence or (ii) whether the court should proceed to decide the petition finally on the basis of the material available on record and after hearing the parties. The executing court in detail order held that there is no need to allow the parties to submit oral evidence and the matter can be decided on the basis of evidence already available on record, but after hearing both the parties.

(3). The apprehension learned counsel for the petitioner-objector is the the executing court without finding out what are the issues involved in the dispute held that there is no need to allow evidence of the parties and thereby the executing court has judged the matter without formulating any point for determination, which was necessary for conclusion that whether the evidence is required for deciding the issues or not. According to learned counsel for the petitioner after order dated 1.2.2005 since the court has fixed the case for final arguments, therefore, in view of the reasons given in the impugned order, the petitioners all rights, available under the provisions of Civil Procedure Code like submitting the more affidavits and documentary evidence and of seeking permission from the court to cross-examine opponents witness, have been taken away and that too, as stated above, without formulating the point for determination. According to learned counsel for the petitioner even from the order, it clearly appears that the executing court proceeded to hold that only point involved in the matter is whether the rent deed was executed or not between the parties and by implications of all the petitioners objections.

(4). Learned counsel for the petitioner submits that the effect of any order passed in the proceedings under Order 21 Rule 97 CPC is that it will determine the petitioners right, title and interest in the property once for all and finally. It is also submitted that though the order passed on application under Order 21 Rule 97 CPC itself is not a decree, but the effect of the order is the same as of decree. Therefore, according to learned counsel for the petitioner, such an important issue cannot be permitted to be decided by the courts without permitting the parties to prove their case or prove the case by cross-examining the opponents witnesses or by destroying the case of opponent by cross-examination of opponents witnesses.

(5). Learned counsel for the respondent submits that this court in the case delivered in Sri Vaishnav Brahmim Trust, Jodhpur vs. Ramesh Chandra & Ors (1), considered the matter in detail and after following the law laid down by the Honble Apex Court in various cases held that ``the objection can be and should be determined on the basis of affidavits filed by the respective parties and documents that may be submitted. It is also submitted that this court (by me) in Smt. Jahoran vs. Kalyanmal & Anr. (2), alongwith connected revision petition, by order dated 19.08.2003, also upheld that procedure adopted by the executing court in the proceedings under Order 21 Rule 97 CPC and upheld the proposition that it is not necessary to even permit cross-examination of the deponent. According to learned counsel for the respondent, this court considered various judgments of this court as well as judgments of the Supreme Court and the judgments of this court delivered in the case of Sri Vaishnav Brahmin Trust, Jodhpur (supra).

(6). I considered the submissions of learned counsel for the parties. It is clear from the first paragraph of the impugned order dated 1.2.2005 itself that the executing court considered the question whether the petition under Order 21 Rule 97 CPC be decided after taking oral evidence of the parties or

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