Ashish N. Trivedi, J.
1. This Civil Revision under Section 115 of the Code of Civil Procedure (for short C.P.C.) is directed against the order dated 2-5-1988 passed by learned Subordinate Judge-VII, Patna, the Executing Court, in Misc. Case No. 19 of 1981 rejecting the petitioner' s application purported to have been made under Order XXI, Rule 97, C.P.C. in Execution Case No. 2 of 1973.
2. On 25-5-1988 a learned single Judge of this Court while admitting the Civil Revision for hearing was of the opinion that the decision of the learned single Judge in Kumar Krishna Nand v. Babu Lal San, 1987 Bihar Law Judgment 306, requires reconsideration and therefore directed that the Civil Revision be heard by a Division Bench. It was further directed that during the pendency of the Civil Revision further proceedings in Execution Case No. 2 of 1973 pending in the Court of Subordinate Judge-VII, Patna shall remain stayed and liberty was granted to the Opposite Party to apply for vacation/modification of the stay order after putting in appearance.
3. According to the petitioner one Aditya Narain Lal, since deceased, had one son Rabindra Narain Lal and four daughters i.e. Champa Devi, Nirmala Devi, Opposite Party No. 1, Kanti Devi and Dyamanti Devi, Opposite Party No. 2, Rabindra Narain Lal is the father of the petitioner Prabhat Kumar Sinha who has three more brothers i.e. Dilip Kumar Sinha, Prakash Kumar Sinha and Sailendra Kumar Sinha. On or about 23-2-1936 Aditya Narain Lal acquired 5 katha 2 dhoor of land at mohalla Kadam Kuan and constructed three rooms which are the subject-matter of the present case. On 15-4-1938 Aditya Narain Lal took a loan of Rs. 6,000/- from Pioneer Housing Society on furnishing security of the land above mentioned and further took a loan of Rs. 4,000/- from Ramnandan Prasad, Advocate
on 3-4-1944 and on 9-9-1945 Aditya Narain Lal mortgaged the house in favour of Sri Ramnandan Prasad, Advocate and further obtained a loan of Rs. 9,000/-. According to the petitioner it appears that on 21-9-1995 Aditya Narain Lal executed a deed of mortgage with conditional sale in favour of Opposite Party Nos. 1 and 2 for Rs. 25,000/- at the rate of 4 1/2 per cent, for the period ending on 20-9-1992 in which Rabindra Narain Lal, father of the petitioner, was one of the witnesses. Earlier on 6-6-1947 Aditya Narain Lal took loan from Mahabir Singh and Ramchandra Prasad which according to the petitioner were paid on 24-9-1955. Aditya Narain Lal died on 25-9-1959. Notice on behalf of Opposite Party Nos. 1 and 2 was served on Rabindra Narain Lal on or about 4-1-1964 and the final demand was made by the said Opposite Party from Rabindra Narain Lal on 1-9-1964 and on his failure Title Mortgage Suit No. 97/10 of 1964-69 was filed against Rabindra Narain Lal who in his written statement admitted that it was self acquired property of Aditya Narain Lal and further admitted the dues of Ram Nandan Prasad, Mahabir Singh and Ramchandra Prasad but on 23-1-1970 a compromise petition was filed by Rabindra Narain Lal who took the liabilities to pay consolidated sum of Rs. 36,000/- to the Plaintiffs (Opposite Party Nos. 1 and 2) in full satisfaction of their claims and eventually a sum of Rs. 13,000/- was paid by a Bank draft dated 22-1-1970 and for the rest amount it was agreed that the same would be paid within 18 months in three equal instalments of Rs. 7667/- but Sri Rabindra Narain Lal failed to pay the amount in terms of compromise as a consequence of which a preliminary decree was drawn on 15-7-1971 and on 21-9-1972 a final decree was passed. Rabindra Narain Lal filed C.R. No. 413 of 1973 in this Court and three weeks' time was granted to convert Civil Revision into a First Appeal. This having not been complied with the Civil Revision No. 413 of 1973 was dismissed on 6-12-1973. Eventually the Restoration Application registered as M.J.C. No. 119 of 1974 was admitted and stay order was granted subject to the condition that Rabindra Narain Lal deposits Rs. 23,416/- within a month from the date of the order. On 17-11-1975 the aforesaid M.J.C. No. 119 of 1973 was dismissed. In the meanwhile objection under Section 47, C.P.C. was preferred by Rabindra Narain Lal on or about 13-7-1974 in Execution Case No. 2 of 1973 which were also dismissed by the order dated 29-6-1975/30-6-1975. Thereupon Rabindra
Narain Lal filed Misc. Appeal No. 171 of 1976 which too was dismissed. Leave to appeal to Supreme Court preferred in this Court by Rabindra Narain Lal was also dismissed by order dated 29-8-1977. Thereafter Title Suit No. 35 of 1979 was filed by Dilip Kumar Sinha against Opposite Party Nos. 1 and 2 in which the petitioner and his father Rabindra Narain Lal were arrayed as Defendants 3 and 4 claiming a declaration that the decree passed in Title Suit No. 97/10 of 1964-67 and the execution proceedings are not binding on the plaintiffs of that suit as also on the petitioner-defendant No. 3.
4. It further appears that on 19-7-1979 warrant for delivery of possession of the property in dispute could not be executed and a report in this behalf was submitted by the Nazir and thereafter the decree-holders (Opposite Party Nos. 1 and 2 herein) made application for assistance of police for executing the delivery of possession. The paper of the Plaintiffs of Title Suit No. 35 of 1979 for injunction was rejected on 7-9-1979. Then the Plaintiffs of Tide Suit No. 35 of 1979 filed a Misc. Case No. 25 of 1979 against Opposite Party Nos. 1 and 2 under Order XXI, Rule 58, C.P.C. which was dismissed by the order dated 4-12-1979 and the order was not interfered by this Court in Appeal. It further appears that the Petitioner filed an application dated 23-2-1981 in Execution Case No. 2 of 1973 informing the Execution Court about the resistance to the warrant of delivery of possession which was registered as Misc. Case No. 19 of 1981. The Executing Court on 12-5-1981 admitted the Misc. Case and stayed further proceedings of Execution Case No. 2 of 1972 ex parte and thereafter some time in June, 1986 the petitioner along with his three brothers and other heirs filed Title Suit No. 220 of 1986 against Opposite Party Nos. 1 and 2 and the prayer for injunction was refused by an order dated 11-12-1986 by the Trial Court against which Misc. Appeal 9 of 1987 was dismissed by this Court and so also the Special Leave Petition filed by the Petitioner was dismissed by the Supreme Court.
5. Misc. Case No. 19 of 1981 which was registered on the application of the petitioner purported to have been made under Order XXI, Rule 97, C.P.C. was dismissed and therefore this Civil Revision.
6. Learned counsel for the petitioner submitted that the Executing Court failed to exercise jurisdiction vested to it in not deciding the dispute raised by the petitioner when it had been brought to the notice of the Execution Court that the petitioner had resisted the execution of warrant of delivery of possession and therefore it was incumbent upon the Execution Court to have proceeded to decide the dispute raised by the petitioner in accordance with the procedure prescribed under Rule 101 of Order XXI, C.P.C, which enjoins that on question including the question relating to right, title and interest to the property arising between the parties to a proceeding on application under Rule 97 or 99 shall be determined by the Court dealing with the application and not by a separate suit.
7. Learned counsel for the petitioner placed reliance on the decision of the Apex Court in Brahamdeo Choudhary v. Rishikesh Prasad Jaiswal, AIR 1997 SC 856 and contended that the word 'any person' under Order XXI, Rule 97, C.P.C. does not debar even a judgment-debtor or any one claiming through him or even persons claiming independently to offer resistance and obstruction and in that situation it was for the decree-holder to have made appropriate application before the Execution Court and in any case the person obstructing or resisting the execution of the decree could bring to the notice of Execution Court about the resistance and obstruction offered by him so as to enable the Execution Court to decide the matter under Order XXI, Rule 97, C.P.C. in accordance with law.
8. The Apex Court in Brahmdeo Choudhary (supra) considered the import of the words 'any person' occurring in Order XXI, Rule 97 Sub-rule (1), C.P.C. and observed thus :--
'It is pertinent to note that the resistance and/ or obstruction to possession of immovable property as contemplated by Order XXI, Rule 97, C.P.C. could have been offered by any person. The words 'any person' as contemplated by Order XXI, Rule 97, Sub-rule (1) are comprehensive enough to include apart from judgment-debtor or any one claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree'.
9. Their Lordships further examined the relevant provisions of Order XXI, C.P.C. and observed that-
'In short the aforesaid statutory provisions of Order XXI lay down a complete Code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order XXI, Rule 97, Sub-rule (1) and he cannot by-pass such obstruction and insist on re-issuance of warrant for possession under Order XXI, Rule 35 with the help of police force, as that course would amount to by-passing and circumventing the procedure laid down under Order XXI, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order XXI, Rule 99, CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order XXI, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI, Rule 99. Order XXI, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order XXI, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest de hors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated
by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order XXI, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order XXI, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executing Court, therefore, would fail also on the ground of non-compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order XXI, Rule 97, C.P.C. as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order XXI, Rules 97 to 103 would remain a complete Code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves.'
10. Learned counsel for the petitioner further
submitted that the Execution Court exercised jurisdiction not vested in it in summarily rejecting the petitioner's application without framing issues and permitting the parties to lead evidence to establish their case. Learned counsel further submitted that a perusal of the application (Annexure 2 to the Rejoinder Affidavit) reveals that the petitioner did not claim possession and occupation of the property in dispute under the judgment-debtor but asserted independent right and title in respect to the property in dispute and, therefore, there was a lis between the petitioner and opposite party in this revision which in any event could not have been summarily rejected.
11. Learned counsel for the opposite party contended that a bare reading of Order XXI, Rule 97, C.P.C. clearly indicate that it is only the decree-holder who is entitled to make application to the Execution Court informing the Court about the obstruction or resistance made by a person to the execution of the warrant for delivery of possession of the property in question and no stranger or even a person claiming through a judgment-debtor is entitled to make such application and, therefore, opposite party were justified in requesting the Executing Court to issue necessary process under Order XXI, Rule 35, C.P.C. for execution of the decree for possession with the assistance of the police force and relied upon a Full Bench decision of Madhya Pradesh High Court.
12. We have examined the submissions of Sri S. Asghar Hussain, learned senior counsel for the petitioner and Sri S.C. Ghosh, learned senior counsel for the opposite party as also the material
on record.
13. In our opinion, reliance placed by learned counsel for the opposite parties on the Full Bench decision of the Madhya Pradesh High Court in Smt. Usha Jain v. Manmohan Bajaj, AIR 1980 MP 146 is of no avail to the opposite parties. The Full Bench decision of the Madhya Pradesh High Court in Usha Jain's case supra considered the correctness of a decision of Division Bench in Bhagwat Narayan v. Kasturi, AIR 1974 MP 26 in which case it was held by the Division Bench that the Executing Court is bound to stay its hands the moment a third party files an objection to the execution of the decree and the stay continues till an unwilling decree-holder/auction-purchaser is forced to apply for investigation into the right or
title claimed by the third party and negative the claim therein. It was observed by the Full Bench speaking through J.S. Verma, J. (as he then was) that even though Bhagwat Narayan's case requires such an investigation to be summary, but after the amendment in Order XXI by the C.P.C. (Amendment) Act, 1976, the investigation is full as no separate suit lies later. It appears that there was a conflict between the two Division Bench decisions one in Bhagwat Narayan's case supra and the other in Ramgulam v. Mahendra Kumar, 1972 MPLJ 254. On reference to the Full Bench it disapproved the view taken by the Division Bench in the case of Ramgulam supra.
14. J.S. Verma, J. (as he then was) speaking for the Full Bench held that-
'The Executing Court has no jurisdiction to start an enquiry suo motu or at the instance of a third party other than the decree-holder/auction-purchaser under Order 21, Rule 97. This Rule is merely permissive and not mandatory so that the decree-holder/auction-purchaser need not resort to it against his will and may even apply for a fresh warrant under Order 21, Rule 35, C.P.C. Executing Court is not bound to stay its hands the moment a third party files an objection to the execution nor the stay would continue till an unwilling decree-holder/auction-purchaser is forced to apply for investigation into the right or title claimed by the third party and negative the claim therein. If the Executing Court were to stay its hands till investigation into a third party's claim is not finally decided then it would result in depriving the decree-holder of his possession by filing repeated spurious claims.'
'No enquiry into the title or possession of a third party is contemplated at any rate at his instance either under Rules 35 and 36 or Rules 95 and 96 of Order 21, C.P.C. when the decree-holder or the auction-purchaser applies for obtaining possession. Subsequently when the decree-holder or auction-purchaser is met with obstruction or resistance in obtaining possession, one of the options open to him is to apply under Rule 97 but that provision is merely permissive and not mandatory and it is open to the decree-holder/auction purchaser to apply instead for a fresh warrant of possession. An enquiry at the instance of a third party in possession is contemplated only under Order 21, Rule 100 after he was dispossessed and not before it.'
'The omission by the Executing Court to investigate into the objection filed by a third party does not result in injustice to the third party. It cannot be said that he would have no remedy to protect his possession and have his tide judicially investigated prior to his dispossession, his only remedy then being under Order 21, Rule 100 after dispossession. Another remedy available to such a third party is to institute an independent civil suit for a declaration of his title claiming therein the relief of temporary injunction to protect his possession.'
'After amendment of Order 21, C.P.C. in 1976 a full investigation into the question of title is contemplated under Rule 97 and not summary enquiry. Thus it would cause greater hardships to the decree-holder, if every claim by the third party is to be investigated by the Executing Court.'
15. The view taken in Brahmdeo Chaudhary supra was reiterated by the Apex Court in Shreenath v. Rajesh, (1998) 4 SCC 543 : (AIR 1998 SC 1827) and it was held that at page 1833; of AIR-
'In view of the aforesaid finding and the law being well settled the interpretation given by the aforesaid Full Bench of the .M. P. High Court in the case of Usha Jain v. Manmohan Bajaj, (AIR 1980 MP 146) cannot be held to be good law.'
16. It is evident from the observations made by the Apex Court that the word 'any person' as contemplated by Order XXI, Rule 97, Sub-rule (1), C.P.C. are comprehensive enough to include apart from the judgment-debtor or any one claim-ing through him even persons claiming independently and therefore they are total strangers to the decree and could lawfully resist/obstruct the execution of the decree for possession and in that situation the decree-holder cannot be permit-ted to by-pass the procedure prescribed under Order XXI, Rule 97, Sub-rule (1) and the other Rules under Order XXI and the decree-holder is not entitled to have recourse and insist for reissuance of warrant of possession under Order XXI, Rule 35 with the help of police force.
17. We have carefully examined the reasons assigned by the Execution Court in rejecting the petitioner's application dated 23-2-1981 (An-nexure 2) on the basis of which Misc. Case No. 19 of 1981 was registered.
18. In view of the law declared by the Apex Court it is settled that whenever an obstruction or resistance is made by any person whomsoever in the execution of decree by the decree-holder there is no other option for the decree-holder except to move the Execution Court under Order XXI, Rule 97, C.P.C. and the Execution Court is obliged to adjudicate the right, title and interest of the obstructionist/resister after notice to him in the manner prescribed under Rules 98 to 103 of Order XXI, C.P.C. which is a complete Code in itself and it provides for the concerned parties to have their grievances once and for all finally resolved in the execution proceedings.
19. We find from the impugned order dated 2-5-1988 passed by the Execution Court rejecting the petitioner's application that there has been no adjudication in the manner prescribed but on certain preliminary objections, without adjudicating the right, title and interest of the petitioner in respect to the property in question, the Execution Court refused to make any enquiry or adjudication as to whether or not the decree in question was binding on the petitioner and unless this was done the execution of the decree in question could not have proceeded.
20. We, therefore, hold that the impugned order dated 2-5-1988 passed by the learned Subordinate Judge VII, Patna in Misc. Case No. 19 of 1981 preferred in Execution Case No. 2 of 1973 cannot be sustained.
21. The contention of learned counsel for the opposite parties that it is only the decree-holder who is entitled to make an application under Order XXI, Rule 97, C.P.C. informing the Execution Court about the resistance/obstruction in the execution of the decree and no stranger or even person claiming through a judgment-debtor is entitled to make such an application, in our opinion is untenable.
22. In Tahera Sayeed v. M. Shanmugam, AIR 1987 Andh Pra 206; K. Ramaswamy, J. (as he then was) examined the import of Order XXI, Rules 97 to 104. In Tahera's case supra; K. Ramaswamy, J. (as he then was) reproduced the observations made in Savamma v. Radhekrishna Moorthy, (1985) 1 Andh LT 436 that-
'The faith of the people is the saviour and succour for the sustenance of the rule of law and any weakening link in this regard would rip apart
the edifice of justice and cause disillusionment to the people in the efficacy of law. The acts of the Court should not injure a party. When the stains on the purity of fountain of justice is apparent, it is but the duty of the Court to erase the stains at the earliest. It is well settled that right to an adjudication is a procedural right. The procedure has been devised as handmaid to advance justice and not to retard the same. The primary object for which the Court exists is to do justice between the parties. The approach of the Court would be pragmatic but not pedantic or rigmarole.'
23. K. Ramaswamy, J. (as he then was) held in Tahera's case supra that at page 212-
'When the third party not bound by the decree approaches the Court to protect his independent right, title or interest before he is actually dispossessed from immovable property and files an application under Order 21, Rule 97, it must be treated to be an intimation to the Court as Caveat to the decree-holder or purchaser or a person claiming through him that 'look here, your fraud would be exposed and collusion uncovered; I am not a pretender for judgment-debtor. I have my own just right, title or interest in the immovable property in my possession and I am not bound by your decree', and the Court is to treat it as a complaint or a counter in opposition as an application for the purpose of Order 21, Rule 97 and to adjudicate it under Rule 98 or Rule 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of Rule 103 and it is subject to appeal and further subject to the result in the prior pending suit under Rule 104. This approach is consistent with ubi jus ebi remedium, shortens the litigation, prevents needless protraction and expenditure and affords expeditious quietus to execution apart from assuaging fair justice. Accordingly I hold that the application under Order 21, Rule 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under Order 21, Rule 97 and it is maintainable.
Even otherwise, the inherent power under Section 151 of the Code also successfully be invoked by the petitioner. The inherent power is in addition to the power which the Court is already possessed of Procedure is not a vested right. It is to be tailored (to ?) attune to the ends of justice. Inherent power is intended to be exercised to prevent miscarriage of justice, or abuse
of the process of the Court. Order 21, Rule 97, if interpreted strictly, could be available only when the decree-holder or purchaser chooses to make avail of. Instead, if he persists in execution under Order 21, Rule 35 against a third party not bound by the decree, on issue of Warrant in Form XI of Appendix E of the Schedule to the Code, the bailiff is bound to execute the decree and deliver physical possession under relevant clauses (1) to (3) thereof; if necessary by assault or by use of criminal force. Thereby the procedure aids abuse of the process enabling the decree-holder or the purchaser to over-reach his object to saddle himself in possession of the immovable property depriving the person in possession but not bound by the decree of his valuable right to property.
Procedure is but the machinery of law-- the channel and means whereby law is administered and justice reached. All procedure, therefore, is an armour to effectuate the right to property. Procedural safeguard is an ingrained facet of fair play in action to subserve the legal right and not to extinguish it. The highest duty of a Court is to take care that its act does not injure a suitor. Thus, in a given situation, as stated earlier, if inherent power is not exercised by the Court to modulate its procedure, it would facilitate heaping injustice upon a rightful person.'
24. In view of the decision in Tahera's case supra it is evident that the petitioner was fully justified in apprising the Court and giving a Caveat to the Court and the decree-holder that the petitioner is not bound by the decree and the decree in question cannot be executed against him and once this was done there was no other option either for the Execution Court or for the decree-holder to have recourse to the procedure prescribed under Order XXI for adjudicating the claim of the obstructionist/resister in accordance with law.
25. We may further mention that a perusal of the impugned order dated 2-5-1988 shows that instead of adjudication the right, title and interest of the petitioner as claimed by him, the Execution Court was swayed by the earlier litigation between the judgment-debtor and decree-holder as also between the brothers of the petitioner and the decree-holder so also between the petitioner and the decree-holder. These were matters which were to be examined not in a summary examination but in a full-fledged adjudication of the
claim of the petitioner as enjoined by law and having not done so the Execution Court failed to exercise jurisdiction vested in it by law which resulted in miscarriage of justice to the petitioner and therefore the impugned order dated 2-5-1988 cannot be sustained.
26. Before parting we may consider whether the judgment of the learned single Judge of this Court in Kumar Krishna Nand supra lays down the correct law. The relevant facts are that Kumar Krishna Nand and others filed Title Suit No. 135 of 1985 against Babulal Sah, the Respondent herein, who was the decree-holder of Title Suit No. 86 of 1987 in which Kumar Krishna Nand and others were not the parties. They therefore filed Title Suit No. 135 of 1985 praying for an injunction for restraining Babulal Sah from proceeding to execute the decree obtained by him in the latter suit.
27. S. Shamshul Hasan, J. in the case of Kumar Krishna Nand supra after examining the provisions of Rules 97 to 103 of Order XXI, C.P.C. rightly held that-
'........ The entire set of Rules provide a
procedure for the benefit of such persons against whom no decree is passed yet they are being subjected to the execution of the decree. It is a short-cut procedure without involving a long drawn suit. In other words, there is no other procedure that a person affected by a decree to which he was not a party can resort to except to offer resistance under Order XXI, Rule 97 and to wait for the decree-holder to seek adjudication of the dispute between the parties by following the procedure under Order XXI, Rules 98 and 101. If the decree-holder, however, fails to take any step after resistance is offered, under Order XXI, Rule 97 of the Code by filing an application then there is no risk of any injury to any person who is stranger to the decree and his right is not being involved by its execution. There is no question, therefore, of filing a fresh suit when the right of the parties can be effectively and properly determined in a proceeding very similar to a suit but without its procedural hurdles. The bar to the suit is absolute in terms of Order XXI, Rule 101 and cannot be controlled by restrictive interpretation of the stage of its operation. Since the steps provided under Order XXI, Rules 97 and 101 are the only steps available in this situation spelled out, I have no hesitation in holding that the suit
filed by the plaintiff is not maintainable.'
We are of the considered opinion that the decision in Kumar Krishna Nand supra lays down the correct law and does not require reconsideration.
28. Accordingly the Civil Revision is allowed and the impugned order dated 2-5-1988 passed by the Execution Court in Misc. Case No. 19 of 1981 instituted by the petitioner is set aside. The Court below shall as expeditiously as possible decide the pending proceedings in accordance with law and the observations made hereinabove. No order as to costs.
Dr. J.N. Dubey, J.
29. I agree