Proper filing of application under Order XXI Rule 58 and proof of possession are essential for a third party claim.

1. The revision petitioner in Civil Revision Petition No.2875 of 2010 is a third party to the suit filed by the respondent.

2. The suit in O.S.No.132 of 1996 on the file of the Principal District Munsif, Tindivanam was filed by the Trust of the family of Dr.Naseer Ahmed Sayeed and his brothers represented by Power of Attorney Sirajuddin Sayeedagainst four individuals for the relief of declaration of their title to the suit property and for recovery of vacant possession. The suit was decreed on 31.3.2003. Thereafter, the plaintiff filed E.P.No.197 of 2003 to get possession of the property and one Anburaja obstructed to the taking of possession and filed E.A.No.39 of 2007 and that petition was dismissed and the appeal filed by him in C.M.A.No.7 on the file of the Sub Court, Tindivanam was also dismissed. Thereafter, the plaintiffs filed E.A.No.373 of 2010 seeking the aid of the police to take possession of the suit property and at that time, the revision petitioner in C.R.P.No.2875 of 2010 filed E.A.SR.4820 of 2010 under Order XXI Rule 58 read with Rule 26 and section 151 of the Code of Civil Procedure stating that in respect of the same property, she also filed a suit in O.S.No.340 of 2009 against one Sirajudeen Syed who is representing the plaintiff in O.S.No.132 of 1996 and obtained an ex parte decree and as per the ex parte decree passed in O.S.No.340 of 2009, the court has declared that she is in possession of the property and the defendants therein viz., Sirajudeen Syed and Nagendran are restrained from interfering with her possession and enjoyment of the suit property and therefore, the decree in O.S.No.132 of 1996 cannot be executed against her without deciding her claim over the property as she got a declarative decree in O.S.No.340 of 2009 and till her claim is settled, the court should also pass an order of stay.

3. The court below, without numbering the application filed under Order XXI Rule 58 read with Rule 26 and section 151 of the Code of Civil Procedure, dismissed the same. As against the dismissal of E.A.SR 4820 of 2010, the revision petitioner filed the revision.

4. It is submitted by the learned counsel for the revision petitioner in C.R.P.No.2875 of 2010 that the revision petitioner has obtained a decree against Sirajudeen Syed in O.S.No.340 of 2009 and therefore, the decree passed in O.S.No.132 of 1996 cannot be executed against her as the property involved in both the suits are one and the same and the plaintiff in O.S.No.132 of 1996 is represented by the first defendant in her suit and therefore, they are bound by the decree in O.S.No.340 of 2009. As she obtained decree against the power agent of the plaintiff in O.S.No.132 of 1996, without deciding her claim over the suit property, the court should not have proceeded further and therefore, the court below has committed a serious error in dismissing her application without numbering the same. According to the learned counsel for the revision petitioner, when any claim is made under Order XXI Rule 58, that has to be decided first and the court ought to have numbered the petition and should not have rejected the application without numbering the same.

5. Per contra, learned counsel for the respondent submitted that the application filed by the revision petitioner is not maintainable and the ex parte decree in O.S.No.340 of 2009 was set aside in I.A.No.717 of 2010 on 7.9.2010 and therefore, she cannot claim any right on the basis of the ex parte decree passed in O.S.No.340 of 2009. The learned counsel for the respondent further submitted that the court below, after considering that the revision petitioner would not be in possession of the property and there is no privity of contract between the revision petitioner and the decree holder and the revision petitioner has not proved her possession, rightly dismissed the application without numbering the same and therefore, the order of the court below does not call for interference. The learned counsel