By the order impugned the appellate Court below has declined appellant/applicant's prayer for converting their Miscellaneous Civil Appeal (No. 36/95) into a Regular Civil Appeal.

A decree for eviction from a house has been passed in Civil Suit No. 28-A/72 by the Court of Civil Judge, Class I, Mhow, in favour of respondent Nos. 1 to 5 and against respondent Nos. 6 to 10. The decree stands affirmed in first as also in second appeal. During execution the applicants filed objection-application claiming to be in possession of the said accommodation in their own rights. It was averred that they have perfected their title to the house in question by adverse possession. They, therefore, claimed that they cannot be evicted from the suit accommodation in execution of the said decree to which they were not party. The application was resisted by the decree holder-respondent Nos. 1 to 5. The executing Court, without entering into any detailed enquiry, dismissed the application holding that the applicants are the near relations of the JDrs and that the application has been made with intent to defraud the decree. Against this order of dismissal, the applicants have preferred Misc. Appeal before the Court of IIrd Addl. District Judge, Mhow. When this appeal came up for final hearing, the applicants moved an application praying for converting this Misc. Appeal into Regular Civil Appeal under section 96 of the Code of Civil Procedure. By the Order impugned, the Court below has dismissed this application observing that the appeal filed by the applicants is not maintainable either under O. XLIII R. 1 or u/s. 96 of CPC.

I have heard Shri Umesh Maheshwari, learned counsel for applicants and Shri R.C. Verma, learned counsel for respondent Nos. 1 to 5. In my view this revision must succeed.

Although in the objection application filed by the applicants, it was mentioned that the application is being filed under O. XXI Rr. 35, 58, 96 & 105 r/w. Sec. 141 and 151 of CPC, the application clearly fell within the provision of O. XXI R. 97; which provides that where holder of a decree for possession of immoveable property or the purchaser or any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. Sub-rule (2) of R. 97 further provides that when any such application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application. Procedure for adjudicating such an application is provided in Rr. 98 to 103. Although Rule 97(1) speaks of making of an application by the decree holder or the purchaser, it is now well settled that even when the resistance is offered and an objection to execution is taken by a stranger occupying the decretal premises and asserting his own right, the executing Court must first adjudicate upon the objections of such a stranger on merits under Rule 97(2) r/w. Rr. 98 & 101 instead of insisting upon first handing over possession and then moving of application by the objector under Rule 99 (See : Brahmadeo [1997 (3) SCC 694].

In the instant case, the applicants who are not judgment debtors claimed to be in possession of the decretal premises in their own rights and on that basis resisted the execution. Their application, therefore, squarely fell within the provision of Rule 97 and the executing Court was, therefore, under obligation to adjudicate the same in accordance with the procedure laid-down in Rs. 98 to 103.

Order dismissing such an objection application will be deemed to be an order passed under Rule 100 and will have the force and be subject to the same condition as to an appeal or otherwise as if it were a decree (see: Rule 103).

It was, however, contended by the learned counsel for the respondents that there was no adjudication as such in. terms of Rr. 100 and 101 of O. XXI and so the order passed by the executing Court was not appealable