The main legal point established in the judgment is that the rejection of an application under Order XXI Rule 97 should be based on the correct interpretation of the law and should not constitute res judicata.

1. The present revision petition under Section 115 of the Code of Civil Procedure (for short `CPC') has been preferred against the judgment and order dated 31st of August, 2010 passed by learned Sub Judge, Jammu whereby the application of the petitioner under Order XXI Rule 97 of CPC has been rejected.

2. With a view to understand the controversy in its correct perspective, it is necessary to briefly state a few facts.

First round of litigation:

3. The respondent No. 1 filed a suit for mandatory injunction against respondent No. 2, who is the father of petitioner herein, seeking a direction to remove his belongings and vacate two rooms and a kitchen, which formed the subject matter of the suit. This has resulted in a decree dated 6th of December, 1993 by the court of learned Sub Judge, Jammu. Execution proceedings were filed by the decree holder-respondent No. 1 herein.

4. The petitioner herein, who claims to be also in possession of the aforementioned two rooms and a kitchen along with his father, moved an application before the court where the execution proceedings were pending, for impleadment as party respondents in the execution proceedings on the plea that he had already filed a suit, questioning the right of his father for relinquishing his share in the ancestral property without his consent. That particular application for impleadment came to be dismissed by the Executing Court on the ground that his earlier application for impleadment as party-respondent in the suit in which the decree had been passed, was dismissed.

5. Against that order of rejection, a revision petition came to be filed in the first round of litigation being Civil Revision No. 31 of 2010 by the petitioner herein. This court by virtue of judgment and order dated 3rd of May, 2010 while dismissing the revision petition held that there was no provision for impleading a person as party respondent under Order XXI of CPC.

6. It would be beneficial to reproduce the relevant paragraph of the judgment and order dated 3rd of May, 2010 as under:

"There is no provision for impleading a person as party under Order 21 of Civil Procedure Code. The only provision which deals with 3rd party intervention is Rules 97 and 99 of Order 21 CPC. An application under Rule 97 can be made by a decree holder in the event of resistance or obstruction in obtaining possession of the property shown by the 3rd person.

The present case is not covered under Rule 97. Application filed by the present petitioner can best be examined under Rule 99. This eventuality will arise only after a party claimed to be in possession of the property, is dispossessed from it. This application would lie only after its dispossession. So, the present application filed by the petitioner cannot be maintained in view of the fact that the petitioner has no where stated that he is dispossessed......"

8. The petitioner herein preferred an SLP before the Apex Court bearing No. Civil 16976/2010, which came to be subsequently withdrawn by the petitioner.

Second round of litigation:

9. In the second round of litigation, the petitioner moved a specific application under Order XXI Rule 97 of CPC, which came to be dismissed by the trial court by holding as under:

"After going through the law cited by both the sides and in view of the facts and circumstances of the case, it is manifestly clear that application of the applicant deserves no consideration inasmuch as the matter stands agitated before the Hon'ble Supreme Court and same was allowed to be dismissed as withdrawn meaning thereby, the observation of the High Court was not interfered with. It is the admitted case of the parties that applicant has not been dispossessed as of now and that eventuality would arise only after he is dispossessed as observed by the Hon'ble High Court."

10. Learned counsel for the petitioner submitted that the court below could not have rejected the application of the petitioner under Order XXI Rule 97 of CPC in view of the clear mandate of the Rul

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