IMPORTANT POINT
Questions raised by resistor must legally arise between him and decree-holder.

H.R. Panwar, J.— This civil second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short “the Code” hereinafter) is directed against the judgment and deemed decree dated 29.7.2009 passed by learned Additional District Judge No. 1 Jodhpur (for short ‘the first appellate court’ hereinafter) whereby the appeal filed by the appellant against the order (decree) dated 23.1.2009 passed by Additional Civil Judge (Junior Division) No. 2, Jodhpur (for short ‘the trial court’ hereinafter) in Civil Misc. Case No. 28 of 2006 in Execution case No. 26 of 2006 under Order 21, Rule 97 of the Code has been dismissed.

2. Briefly stated the facts of the case to the extent they are relevant and necessary for the decision of this second appeal are that a civil suit for eviction and arrears of rent came to be filed by the respondents landlords against tenant Ramgopal on the ground of default in payment of monthly rent and subletting the premises to the appellant applicant Subhash Sharma and Dilip Sharma before Additional Munsiff No.2, Jodhpur being Civil Original Suit No.52/93. The suit came to be decreed by trial court by judgment and decree dated 3.2.1994 against tenant Ramgopal. Tenant Ramgopal did not challenge the judgment and decree of eviction and arrears of rent. The landlord filed execution proceeding before the trial court and in the execution proceeding an application under Section 151 of the Code came to be filed by appellant Subhash Sharma on 28.9.2006 stating therein that the decree of eviction has been passed against tenant Ramgopal whereas the appellant claims to be direct tenant of the respondent landlord with effect from May, 1982 and on that strength he is in possession of the suit premises. It has been further stated that the appellant filed a civil suit for declaration and permanent injunction seeking to declare the judgment and decree dated 3.2.1994 passed in Civil Original Suit No. 52/93 against tenant Ramgopal as null and void. The suit was partly decreed, however, on appeal before the Additional District Judge No.1, Jodhpur, by judgment dated 21.9.06 the appeal filed by the respondents landlord came to be allowed and appeal filed by appellant Subhash Sharma came to be dismissed. Thereafter, appellant Subhash Sharma filed an application under Section 151 of the Code before the trial court and on application of the appellant, the trial court directed landlord respondents to file an application under Order 21, Rule 97 of the Code. That order came to be challenged by the respondents landlord before this Court by way of writ petition being S.B. Civil Writ No.1328/07, Chinna Ram and Anr. v. Civil Judge (J.D.) No.2, Jodhpur and Ors. By order dated 17.5.2007, this Court set aside the order impugned therein dated 27.1.2007 and directed the Executing Court to treat the application of the appellant Subhash Sharma under Section 151 of the Code filed on 28.9.2006 as application under Order 21, Rule 97 of the Code. This is how the trial court proceeded on the said application and passed the order dated 23.1.2009 dismissing the application under Order 21, Rule 97 of the Code. On an appeal against the said order dated 23.1.2009, the first appellate court passed the judgment impugned dismissing the appeal. Hence, this second appeal.

3. I have heard learned counsel for the parties. Carefully gone through the orders passed by both the courts below on an application under Order 21, Rule 97 r/w Section 151 of the Code.

4. It is contended by learned counsel for the appellant that the judgment of the trial court as well as the first appellate court are perverse and therefore, this second appeal involves substantial question of law. It is further contended that in the month of May, 1982 the original tenant Ramgopal vacated the disputed premises and appellant became the tenant at the rate of Rs. 500 p. m. At the time of vacating the disputed premises, the original tenant Ramgopal has handed over the rent note executed by h