JUDGMENT

Tek Chand, J. - This is an appeal arising out of proceedings in execution of a decree, which was obtained as far back as 25th March 1918, by the appellant Mt. Talia Bibi against Nur Din respondent, for possession of a kotha situate in the city of Lahore. The decree-holder commenced proceedings in execution soon after the decree was passed, but for more than six years the judgment-debtor managed to have the execution delayed by putting forward all kinds of objections. After these objections had been rejected the executing Court, on 24th March 1923, issued a warrant for delivery of possession. The bailiff who went to execute the warrant found one Muhammad Din and certain other persons in possession. These persons refused to surrender possession and alleged that they were not holding under Nur Din (judgment-debtor) but were the tenants of one Mt. Allah Rakhi, a washer-woman. On that date Mt. Allah Rakhi handed over a written application to the bailiff stating that she was the owner of the house, that she had not been made a party to the suit and that the persons actually in possession were her relations who were holding the house as tenants under her. The bailiff submitted this application to the Court along with his report dated 5th April 1925, stating that Muhammad Din, etc., had offered resistance, and asking instructions as to how he should proceed. The case came up before the Court on 14th April 1925, when Mt. Allah Rakhi filed a fresh application purporting to be under Order 21, Rule 97, Civil P.C., in which she repeated her previous allegations and prayed that she be not dispossessed as she was not bound by the decree. This application was rejected by the Court on 22nd May 1925, on the ground that Order 21 Rule 97 governed applications filed by decree-holders or auction-purchasers and not by persons who claimed to be in possession in their own right and who had offered resistance. The Court, further, held that if the application was really intended to be one under Order 21, Rule 100, it was premature as the applicant had not been actually dispossessed. Accordingly it issued a fresh warrant and directed that if the judgment-debtor offered resistance he should be arrested This order, however proved to be infructuous and another warrant had to be issued. Resistances was again offered, and this time the Court ordered that notices should issue to Shahab Din and Ghulam Muhammad, etc., who had offered resistance. It took considerable time to serve them, but eventually on 20th October 1925, the decree-holder and counsel for Shahab Din and Ghulam Muhammad were present and the following issue was framed

Are Ghulam Muhammad and Shahab Din, etc., in possession as tenants under Nur Din.

2. The case was adjourned to 2nd November 1925 for evidence. It had to be adjourned once again, as a compromise was mooted, but the Court directed that if no compromise was effected by that date the parties must be ready with their evidence. On 25th November it transpired that no compromise had been effected nor were any witnesses for the parties present. The Court refused to give to the decree-holder further opportunity to produce her evidence and ordered that no proceedings could be taken against the "trespassers" as it had not been proved that they were holding possession under Nur Din, judgment-debtor. The execution proceedings were accordingly consigned to the record room but it was remarked that if the decree-holder was so advised she could file a regular suit against Mt. Allah Rakhi or the "trespassers."

3. On 15th June 1926, the decree-holder without having instituted any suit against Mt. Allah Rakhi or the trespassers filed another application moving the executing Court to be put in possession alleging that Nur Din, judgment debtor, was the real person in possession and that Mt. Allah Rakhi had told her that she had never been in possession at all nor had she anything to do with it. This application was dismissed in limine by the executing