The central legal point established is the jurisdiction of the court to issue parwana for delivery of possession under Order XXI, Rule 35, and the lack of right for a stranger to intervene in the execution proceedings.

( 1 ) AFTER hearing Mr. R. N. Bhalla and Mr. Somesh Khare for the applicants and Mr. S. A. Gilani, be an order dated 18th July, 2000. was dictated in open court disposing of the said application after having allowed the substitution on the ground that the Impugned order arose out of a proceedings under Order XXI, Rule 97 of the Code of Civil Procedure, which was otherwise appealable and no revision lies, and, therefore, the case was remitted to the Court for deciding the revision directing it to treat the memo of revision as a memo of appeal in exercise of its appellate jurisdiction since the order determining the question under Rule 98 or under Rule 100 of Order XXI of the Code are deemed decrees by reason of Rule 103 of Order XXI. Mr. Khare had pointed out that the impugned orders were passed in a proceeding arising under Order XXI, rule 97. This question was specifically pointed out to Mr. Gilani, who conceded to the situation. Therefore, the said order was passed. Subsequently at the time of correcting the order, certain confusion cropped up. The records were perused and it was found that the application on the basis whereof the impugned orders were passed, were not an application under Order XXI, Rule 97. The confusion was created that the order was related to the application filed in 1980 by the decree holder under Order XXI, Rule 97. At the point of time, Mr. Gilani did not place the relevant materials and failed to point out that these proceedings had no connection with the proceedings under Order XXI, Rule 97, which stood terminated by an order dated 10th January, 1985. Having regard to the said situation, the order was not signed and the matter was placed for orders in the computer list. Both the counsel were intimated. It was adjourned from time to time on the ground of absence of the counsel for the respective parties,

( 2 ) TODAY, the matter has since been taken up and heard. I have heard Mr. Somesh Khare, learned counsel for the applicants as well and Mr. S. A. Gilani for some time.

( 3 ) IN order to appreciate the situation. It would be beneficial for us to refer to the facts giving rise to these proceedings.

( 4 ) THE decree holder Alauddin had filed an application under Order XXI, Rule 97 on 9th May, 1980, in connection with Execution Case No. 7 of 1980 before the Additional Munsif IIIrd court, Pilibhit, which was registered as Misc. Case No. 13 of 1980. In the said application, it was pointed out that the execution was resisted by one Nabbu Khan. The said Misc. Case was dismissed by an order dated 10th January. 1985. In the said order, it was pointed out that on 8th april, 1980, the Amin had pointed out that there was a resistance in the execution of the decree. In the said order, the learned Judge had pointed out that the limitation for making an application under Order XXI, Rule 97 is 30 days from the date of resistance. Therefore, according to him, the question of resistance arose on 8th April, 1980. Whereas the application under Order XXI, rule 97 was made on 9th May, 1980. Therefore, it was beyond 30 days. But the said application did not accompany an application under Section 5 of the Limitation Act. On this ground, the application under Order XXI, Rule 97 was dismissed.

( 5 ) THUS, there was no adjudication on the merit of the case. Neither there was any finding that nabbu Khan was in possession of the suit property. Subsequently the decree holder had filed an application on 10th May, 1985, for issuing parwana. Copy of the said application is not annexed with this petition. Neither Mr. Khare nor Mr. Gilani was able to produce a copy of the application made on 10th May, 1985. However, in the order dated 10th July, 1985, by which the application dated 10th May, 1985, was rejected mentioned that there was again an application under Order XXI, Rule 57 for issuing parwana for delivery of possession. But the fact remains that there cannot be any question of making an application under Order XXI