( 1 ) THIS Bench has been constituted to hear this revision on a reference made by mr. Justice Raina, because, in his opinion, the following question deserves to be decided by a Division Bench. "whether the executing Court is bound to consider the application of a person in possession where he was not a party to the decree before he is dispossessed ?"

( 2 ) FACTS material for this reference are that Kasturibai (respondent No. 1) obtained equivalent Citation: an ex parte decree for arrears of rent and ejectment against Yuvraj Singh (respondent No. 2) in respect of a house. To execute the warrants for possession and attachment, the Nazir went to the house on August 22, 1972. He could not deliver possession and made a report to the Court complaining, inter alia, that one bhagwat Narayan claimed to be in possession of the house and refused to vacate it, unless there was an order against him. He claimed to be the tenant of one sushilabai. When the decree-holder was asked to take possession, Bhagwat narayan obstructed. There was apprehension of breach of the peace. Therefore, neither possession could be taken, nor attachment could be effected. The Nazir recommended that Police aid to be requisitioned.

( 3 ) ON August 28, 1972, Bhagwat Narayan made an application to the executing court stating that he is the tenant of Smt. Sushilabai; that no one by name yuvrajsingh is in the occupation of the house; that an ex parte collusive decree appears to have been obtained against some Yuvrajsingh in order to harass the objector; and that on the basis of that collusive decree, the decree-holder is making an endeavour to dispossess him. He further alleges that the decree-holder brings goondas and threatens him. He prayed that until his objection was decided, the proceedings for possession be stayed and that he should not be dispossessed. This objection was supported by an affidavit. The decree-holder opposed the application contending that it was not maintainable and that he has no legal right of any kind.

( 4 ) BY its order dated September 2, 1972, the executing Court rejected the objection with the observation that the objector had no right to file an objection. Since he had disclosed the capacity in which he is in possession and filed an affidavit, the decree-holder would initiate necessary proceedings, if the objector is in possession. Aggrieved by this order of the executing Court, this revision was filed by Bhagwat Narayan. It was laid before Mr. Justice Raina for hearing. He observed, the question how the executing Court can help a party in possession, who is not bound by the decree before he is dispossessed, has posed a problem which requires careful consideration. The learned Judge then referred to the decision of one of us (Shiv Dayal, J.) in Civil Revn. No. 275 of 1971 (Madh Pra) (Shiv Sarup Golas v. Ram-prasad Gupta), in which the decree-holder's reply to the application of the party in possession was treated as the decree-holder's complaint under Order 21, Rule 98, Civil R. C. The learned Judge then suggests that where such an application is made by the party in possession, before or after issue of process, the executing Court must consider it suo motu in exercise of its inherent jurisdiction, even though it may not fall under the provisions of Order 21, considering this matter to be of general importance and of frequent occurrence, he referred it to the Hon'ble the Chief Justice for constituting larger Bench.

( 5 ) WE have heard Shri A. B. Mishra for the petitioner Bhagwat Nara-yan, and Shri motilal Gupta for the decree-holder. Shri Bhagwandas Gupta and Shri Hargovind mishra assisted us as amicus curiae for which we are thankful to them. Equivalent Citation:

( 6 ) THE contention for the petitioner is that as he is in actual physical possession of the house in question and is claiming to be so as a tenant of one Smt. Sushilabai, who is the owner of the house, he cannot be dispossessed merely because an ex parte collusi