Judgment:
1. The petitioner is possessed of the house bearing No. 10-2-287/1 in A. C. Guards, Santhinagar, Hyderabad which respondent 3, Periaswamy purchased in two portions, A portion in the name of his wife and daughter (respondents 4 and 5) and B portion in his name, under two sale-deeds dated March 31, 1978 and July 15, 1979, respectively. It is the case of the petitioner that the cheques issued by Periaswamy as consideration for the sale of B portion house were bounced and thus received no consideration; thereby Periaswamy played fraud on her. On demand, Periaswamy surrendered possession of the B portion under Ex. A-4 affidavit dated September 4, 1980. The petitioner laid the suit, O. S. No. 1307/80 which was renumbered as O. S. No. 306/82 in the Court of the Addl. Chief Judge, City Civil Court, Hyderabad, to declare that the sale as invalid or for specific performance. He also filed I.A. 1492/80 against Periaswamy for ad interim injunction restraining him from interfering with her possession. Interim injunction was granted and it was made absolute, which was upheld by this Court in C.M.A. 240/81 dated July 29, 1981.
2. While the matters stood thus, it emerges that Periaswamy purported to have executed an agreement of sale dated November 30, 1979 under Ex. B3 in respect of A and B portions, in favour of Shanmukham. For enforcement thereof, immediately, a suit C.S. 61/82 was filed in the High Court of Madras for specific performance of the properties at Hyderabad, which was decreed ex parte on March 14, 1983 under Ex. B8. Shanmukham was to deposit sale consideration in Court, but it was not done. Yet, E.P. was filed to execute the sale-deed stating that the amount was received outside the Court. In the meanwhile, T. Narasimha, respondent 2 filed application No. 2433/84 on June 28, 1984 in the said suit, C.S. 61/82 stating that he had purchased half share in that property from Shanmukham and a sale-deed may be executed in his favour and an order was passed thereon to that effect. Pursuant thereto, two sale-deeds were executed on August 27, 1984 by the Madras High Court, in favour of Shanmukham and T. Narasimha in respect of half share each in the house. Then E.P. No. 93/84 was filed for transmission for execution to take delivery of possession which was transferred accordingly. T. Narasimha filed E.P. 6/85, in the Court of the First Addl. Judge, City Civil Court, Hyderabad, for delivery of possession of A portion i.e. 10-2-287/1A, of an extent of 800 sq. yards or 652 sq. meters, consisting of a double-storied building, and had taken possession thereof on February 11, 1985. Subsequently, Shanmukham filed E.P. 10/85 to deliver possession of B portion i.e., 10-2-287/1B, to him. For none of the aforesaid proceedings the petitioner was made a party. Then the petitioner had objected to deliver possession of B portion when she became aware of the E.P. Thereafter he had withdrawn the E.P. and it was dismissed on December 31, 1985. In the interregnum, T. Narasimha filed E.P. 42/85 in September, 1985 to deliver possession of B portion i.e., 10-2-287/1B, by Periaswamy and two others with their address at Secunderabad. The petitioner was not, even now, made a party. He admits that he had taken possession of A portion on February 16, 1985 and he claims for B portion, on an alleged inter se agreement between him and Shanmukham. On becoming aware of this, the petitioner filed E.A. 5/85 seeking declaration 'that she is not liable to be dispossessed of the B marked portion of the premises.' That application now stands dismissed by the Court below, as against which the C.R.P. has been filed.
3. The claim of the petitioner which was ably supported by her learned counsel, Mr. M. L. Ganu is that the petitioner laid the suit to cancel the sale Ex. B-2 of her B portion property to Periaswamy since Periaswamy played fraud on her and obtained the sale-deed without payment of consideration. The interim injunction restraining Periaswamy from disturbing her possession of B portion is ultimately confirmed by this Court and is subsisting. To wriggle out therefrom, an attempt has been made by Periaswamy, in collusion with the respondent to dispossess her, and so a collusive suit was filed in Madras High Court, conferring jurisdiction under the agreement to see that the petitioner is kept under dark of the suit; obtained an ex parte decree and without depositing even a pie into Court, got two sale-deeds executed and her possession of B portion is sought to be disturbed in execution of that decree. Her right, title and interest in the property is not divested under Ex. B-2 dated January 15, 1979, the sale-deed executed in favour of Periaswamy; she still continues to be the owner of the property; she objected to her dispossession when Shanmukham laid E.P. 10/85 and he had got it dismissed as withdrawn. Narasimha filed E.P. 6/85 and had already taken possession of A por1tion of the house. Thus, T. Narasimha is not entitled to claim for B portion and Shanmukham, who claimed for B portion laid E.P. 10/85, had abandoned it. All these facts clearly give birth to confabulation between Periaswamy, Shanmukham and T. Narasimha,. This fraudulent device was adopted to deprive the petitioner of her rights in the suit, O.S. 306/82, and the order of injunction operating against Periaswamy. Therefore, the petitioner seeks declaration that she is not liable to be dispossessed. Though there is no express provision of law to enable the petitioner to claim that relief, the principle underlying O. 21, R. 97 read with S. 151, Civil P.C., 1908, for short, 'the Code', could be taken aid of. The enquiry is jurisdictional fact but the Court below committed error of jurisdiction in dismissing the application of the petitioner. Sri Ramachandra Reddy, learned counsel for T. Narasimha has traversed these contentions contending that T. Narasimha obtained a lawful decree; execution thereof is not an injury within the meaning of O. 39, R. 1(c) of the Code, the relief in the garb of O. 21, R. 97 is in disregard of O. 39, R. 1(c) and cannot be granted. The executing Court cannot go behind the decree and no suit was filed impeaching the decree in C. S. 61/82. Shanmukham entered into an agreement with Narasimha to sell half share in the property; he is not a party to the subsisting injunction against Periaswamy; even if the decree or the execution in C.S. 61/82 is in violation of the injunction issued by the Civil Court in O.S. 306/82, the sale is not void; therefore Narasimha is entitled to execute the decree. The petitioner has lost her title by executing a sale-deed Ex. B-2 and unless her suit is decreed, she cannot have a subsisting right or title; therefore her possession is illegal; she cannot resist possession in execution of decree and the Court rightly dismissed the application. It is also contended that the very application itself is not maintainable. There is no threat to possession against the petitioner; and only when she was actually dispossessed she can file the application under O. 21, R. 99 and she cannot file any such application on apprehended action.
4. The rival contentions give rise to the first question whether the petition is maintainable. If it is held that the petition is not maintainable, then the need to go into other questions does not arise. Order 21, Rule 35(1) of the Code posits that where a decree is for delivery of immovable property, possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf, and if necessary, by removing any person bound by the decree who refused to vacate the property. When resistance for delivery of possession is caused, O. 21, R. 97 comes into operation to take aid of. It provides that, where the holder of a decree for the possession of immovable property 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. On making such application, the Court shall adjudicate it under sub-r. (2) thereof. Rule 99(1) of O. 21 gives a right to any person who is dispossessed by the decree-holder or the purchaser, to lay the application for restitution. When either of those applications have been filed, under R. 98(1) the Court is enjoined to determine the questions, referred to in R. 101, which postulates that all questions, including the questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under R. 97 or R. 99 or their representatives, and relevant to the adjudication of the application, shall be determined dealing with those applications and not by a separate suit. Thereafter, the Court is given power, when it satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property and, where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. The person dispossessed shall be entitled to restitution under O. 21, R. 98(1)(a). Under R. 103, the adjudication made under R. 98 or R. 100, shall have the same force and subject to the same conditions as to an appeal or otherwise as if it were a decree. Under R. 104, every order made under R. 101 or R. 103, shall be subject to the result of any suit that may be pending on the date of the commencement of the proceeding in which such order is made if in such suit the party against whom the order under R. 101 or R. 103 is made has sought to establish a right which he claims to the present possession of the property.
It is to remember that preceding the Civil Procedure Code Amendment Act, 1976, the enquiry under Rr. 97 and 99 was only summary subject to right of suit whereas the questions relating to right, title or interest were to be established. With a view to shorten the litigation and the execution is given quietus expeditiously right of suit is taken away and enquiry is enjoined in the proceedings under R. 98 of O. 21 itself and the order therein is treated to be decree and it is subject to appeal.
It is true, as contended by Sri Ramachandra Reddy, that on putting up obstruction or resistance to the execution of the decree, the decree-holder or purchaser is to lay an application for removal thereof, or on dispossession, the dispossessed gets cause of action under O. 21, R.97 or 99 respectively. At the cost of repetition, it is to state that the petitioner asserts her independent title and right in B portion house as owner. She was not made party to any proceedings anterior to the execution. Narasimha derives title from Shanmukham who in turn claims from Periaswamy. The petitioner asserts that Periaswamy played fraud on her. If fraud is established the sale under Ex. B-2 becomes void. When threat to possession was simmering in E.P. 10/85 of Shanmukham, she resisted it and it was averted. Now, at the instance of Narasimha, the threat to dispossession is imminent. She is now claiming adjudication of her right, title and interest before being actually dispossessed ostensibly through Periaswamy against whom there is subsisting injunction. The question is whether an application, under the circumstances, is maintainable under O. 21, R. 97. Is it not the duty of the Court to adjudicate the petitioner's claim to render fair and substantial justice? Could resistance or obstruction be removed without adjudication? The rules of procedure are handmaids to ends of justice. The substance of the matter, but not the forum is the guiding star to the goal of justice. An application after dispossession by the petitioner is no solace and many a time prove abortive or ineffective. Adjudication before execution is efficacious as an aid to prevent fraud or abuse of the process of the Court or miscarriage of justice. Adjudication under O. 21, Rr. 98, 100 and 101 is sine qua non to a finality of the order and a decree under R. 103. But what is the relevant provision is the question.
5. It is true, as contended by Sri Ramachandra Reddy, that the petitioner could avail of an independent suit to protect her possession or a suit to cancel the decree in C.S. 61/82 and obtain an injunction pendente lite. In my view, it is a needless exercise. The petitioner's suit, O.S. 306/82 at Hyderabad is earlier to C.S. 61/82 on the file of the Madras High Court. If the petitioner succeeds, Periaswamy and Shanmukham and Narasimha, his alleged vendees are bound thereby. By operation of O. 21, R. 104, the decree in O.S. 306/82 prevails over the adjudication under O. 21, R. 98 and R. 101. The recourse to pre-sale adjudication under O. 21, R. 58 is unavailable, since the property in dispute was not attached in execution of a decree. Equally, the procedure under O. 21, Rr. 95 and 96 is also unavailable to Narasimha as the property in dispute was not sold in execution. The procedure under R. 99 of O. 21 is not available to the petitioner, since he is not yet dispossessed. The only provision available and taken aid by Narasimha to take delivery of possession is O. 21, R. 35 or when resistance or obstruction by the petitioner when warrant in Form XI in Appendix E of Schedule is issued, is available under O. 21, R. 97. True, the warrant is yet to be issued. In the light of the facts narrated hereinbefore, the threat to dispossession was once averted and, at the instance of Narasimha, it is imminent. Therefore, the question that emerges is whether the petitioner is to await the issue of warrant to deliver possession and then to offer resistance or obstruction or to seek an enquiry before the actual dispossession and if so, under what provision. In Usha Jain v. Manmohan Bajaj, : AIR1980MP146 (FB) relied on by Sri Ramachandra Reddy, it was held that recourse to R. 97 of O. 21 by the purchaser or decree-holder is optional. Same is the view in Raghunandan v. Ramachandran, AIR 1919 Pat 425 (2); Nityananda v. Paladevi, : AIR1952Ori120 (FB). The decision in Bhagwat Narayan v. Kasturi, : AIR1974MP26 relied on by Mr. Ganu was overruled in Usha Jain's case (supra). Thereby it is settled law that, when obstruction or resistance was offered for delivery of possession under O. 21, R. 35, it is optional for the decree holder or the purchaser to make avail of the remedy under R. 97 of O. 21 to remove such obstruction or resistance offered by any person in possession of the immovable property. But this conclusion does not salvage the issue in question.
6. The delivery of possession under R. 35 of O. 21 operates only against the person bound by the decree. Delivery of possession has the effect of dispossessing a third party in possession but not bound by the decree. Mode of delivery consists of physical delivery under sub-r. (1) or symbolic possession under sub-r. (2) like tenants, etc., or specific removal of the persons named therein for obstruction, under sub-r. (3). In Usha Jain's case (supra), J. S. Verma, J. speaking for the Full Bench held that on resistance of the execution by third parties after return of the warrant by the bailiff, it is open for the purchaser to file application afresh and the Court is to issue another warrant and thereby to approve of forcible dispossession. In Raghunandan's case when a sub-tenant offered persistent resistance, the Full Bench considered the question whether a purchaser could avail of the remedy under R. 97 of O. 21. While upholding that right to the purchaser, it was held that it was permissive as against the sub-tenant. Nityananda's case was concerned mainly keeping in view the short limitation provided for removal of obstruction, its summary procedure and the ordinary right of suit. Jagannadha Das, C. J. (as he then was) speaking for the Full Bench held that the decree-holder or purchaser cannot be compelled to have recourse to R. 97 of O. 21. All these cases are anterior to 1976 Amendment Act, and enquiry under O. 21 is summary and it is subject to right of suit. Now, by S. 72 of the Amendment Act, the right to suit is taken away and enquiry under O. 21, Rr. 98 and 101 is conclusive and the order passed thereunder is a decree subject to appeal. It is also to remember that in the State of Andhra Pradesh, in respect of obstruction by a sub-tenant under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) and the Rules made thereunder, is governed by an express provision to remove obstruction. Therefore, the need to avail the remedy under R. 97 of O. 21 does not arise.
7. In Murugappa v. Emperor, AIR 1925 Mad 613 obstruction by a person in possession who is not bound by the decree but when was sought to be evicted by a warrant under O. 21, R. 35, it was held to be not an unlawful obstruction to the exercise of the lawful authority by the public servant within the meaning of S. 186, Penal Code. In Abdul Sattar v. Moti Bibi, AIR 1930 Cal 720 when the third party in possession offers resistance for execution of the decree under O. 21, R. 35, the removal of such person by force other than the judgment-debtor was held to be an assault, punishable under S. 323, I.P.C. In Abdul Aziz v. Chokkan, AIR 1935 Mad 803, Ramesam, J. speaking for the Full Bench, to which I am bound by, held :
'Where the decree-holder-purchaser seeks delivery of possession of immoveable property and the judgment-debtor obstructs the decree-holder should make a complaint under O. 21, R. 97, Civil P.C., and the matter must be disposed of in execution. If the judgment-debtor and a third party both obstruct, the decree-holder-purchaser has to complain against the judgment-debtor and, if he chooses, against the third party also under O. 21, R. 97 and the complaint can then be disposed of. But if the judgment-debtor is quiescent, raises no objection and makes no opposition either before the Amin or before the Court, it is clear that so far as he is concerned, there is no objection to the delivery. But in such a case, the third party may object and on account of the third party's objection physical possession of the property cannot be given. In such a case it is the duty of the Court to note the fact and to order delivery of such possession as the matter may then be capable of so far as the judgment-debtor (is concerned ?).'
I respectfully agree with the procedure indicated by the Full Bench. The delivery in execution is effective only against the person bound by the decree. It does not bind the third party who has independent right, title and interest in the immoveable property, the subject of execution under R. 35 of O. 21. In M. Ramiah v. K. Malliah, : AIR1962AP72 when a third party filed an application under O. 21, R. 97 and counter was filed by the decree-holder objecting to the enquiry it was held that the counter of the decree-holder could be treated as an application under O. 21, R. 97 and enquiry could be conducted thereon. Though in Usha Jain's case : AIR1980MP146 (FB) the decision in Bhagwat Narayan's case : AIR1974MP26 was overruled, Shiv Dayal, J. (as he then was) treated the obstruction to be a 'complaint' within the meaning of O. 21, R. 97 and Oza, J. (as he then was) while agreeing with Shiv Dayal, J. treated the resistance as an application. The ratio in Ramiah's case is in consonance with the procedure envisaged in Abdul Aziz's case AIR 1935 Mad 803 (FB). Similar is the view in Mahabir Pershad v. Delhi Traders, : AIR1977Delhi45 and Ram Chandra v. Manmal Singhi, AIR 1983 Sikkim 1 relied on by Mr. Ganu. In Kuldip Singh v. Charan Singh, AIR 1986 Delhi 297, the 1976 Amendment Act was taken note of. I respectfully agree. In K. A. Prabhakaran v. Kuttian Prakashan, 0043/1985 : AIR1985Ker204 , relied on by Sri Ramachandra Reddy, it would appear that there is unbroken thread running through Mammoo v. Krishnan, 1978 Ker LT 901 to Prabhakaran's case, that an unwilling decree-holder cannot be compelled to file an application under O. 21, R. 97, C.P.C. I express my profound inability to fall in line with the view in either Usha Jain's case : AIR1980MP146 (FB) or Prabhakaran's case.
8. Though R. 99 of O. 21 gives right to file an application by a person dispossessed of the immovable property, it is a poor consolation to him to be asked to approach the Court after dispossession when he lays bear the facts in advance and seeks assistance to protect his possession. In Savamma v. Radhakrishna Moorty, (1985) 1 Andh LT 436, I held 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 dis-illusionment 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. Considered from this perspective, I have no hesitation to hold that 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 O. 21, R. 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 O. 21, R. 97 and to adjudicate it under R. 98 or R. 101 which shall be final and conclusive between the parties and it shall be treated to be a decree for the purpose of R. 103 and it is subject to appeal and further subject to the result in the prior pending suit under R. 104. This approach is consistent with Ubi jus ebi remidium, 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 O. 21, R. 97 of the petitioner or the counter of respondent 1, Narasimha, be treated as an application under O. 21, R. 97 and it is maintainable.
9. Even otherwise, the inherent power under S. 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 O. 21, R. 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 Cls. (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 overreach 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. Though O. 39, R. 1 provides for issue of an order of ad interim injunction, when a given case is not expressly come within its four corners, the Supreme Court in Shankar Balaji v. State of Maharashtra, : (1962)ILLJ119SC held that injunction could be issued in exercise of inherent power. In A. Kasamma v. P. Bramarambu, (1967) 2 Andh WR 260, a Division Bench of this Court exercised inherent power and set aside the excessive sale in execution though the sale was made in conformity with law. In Punjab Mercantile Bank v. Kishan Singh, , when the property was purchased for inadequate price due to confabulation between the judgment-debtor and the purchaser, the sale was set aside by exercising inherent power, though the claim is barred. In Kannappa v. Srinivasan, : AIR1960Mad499 when the decree-holder failed to inform the Court of the receipt of part of the decretal amount and yet the sale was proceeded with for recovery of the decree amount, inherent power was exercised and the sale was set aside. In Mubarak Begam v. Sushil Kumar, when fraud was played on the Court, inherent power was exercised and sale was set aside. Similar is the view in Kandaswami v. Narasimha Aiyar, : AIR1952Mad582 . In Pankaj Kumar v. Nani Bala Pakhira, ILR (1968) 1 Cal 43 the Division Bench had held that though the person vitally interested in the property has no locus standi to file the application, when fraud is brought to the notice of the Court, inherent power was exercised and sale was set aside. In Savamma's case, (1985) 1 Andh LT 436, the plaintiff, tenant, in collusion with the landlord filed a suit for injunction and obtained a direction to appoint a Commissioner to be present for constructing the compound wall and eaves thereon and accordingly it was done. Subsequently, the suit was got dismissed. Defendant filed an application for restitution after lapse of some time. The trial Court dismissed the application on the ground that the Court became functus officio and the remedy is to file a suit for mandatory injunction for demolition. When revision was filed, this Court has held that the need to exercise inherent power stems from and its breath is co-extensive with its necessity to undo injustice. When the injustice is staring on the record, abuse of the process is manifest, this Court cannot keep its hands back and be obivious to obvious abuse of the judicial process saying that revisional power would merely stop at the gateway of discretionary domain of the Courts below and be a passive spectator gasping to enter into and allow the abuse to subsist thereby relegate the party injured to a tardeous separate suit. When the facts poignantly portray the pugnacious effect on the efficacy of judicial process, refusal to redress the injury tacitly feeds otherwise curable tendency to abuse the process of the Court. It was held that it is incumbent and may (nay ?) indeed the duty of the Court to undo injustice by exercise of the inherent power. In the light of the above law and the effect of the failure to exercise the power, it would necessarily to be concluded that in an appropriate case, inherent power is to be exercised though not in routine but sparingly to prevent abuse of the process of the Court or fraud on the Court or to meet the ends of justice._
10. Accordingly I hold that the application of the petitioner could be treated as one filed under S. 151 of the Code and the procedure envisaged under O. 21, Rr. 98 and 101 is to be followed treating it to be a decree under O. 21, R. 103 of the Code.
11. The next question is whether the lower Court is right in refusing to investigate into the question. On a perusal of the order, it is clear that the Court below did not go into the question in its proper perspective. It merely held that the petitioner by the sale under Ex. B-2 has lost her title and respondent 2 obtained title under Ex. B-15 sale deed executed by the Madras High Court, therefore he has right to possession. The Court below committed material irregularity and failed to exercise the jurisdiction vested in it in reaching that conclusion. In the view I am taking, it is not necessary to express any opinion on merits because the Court below has to go into that question. But suffice it to state that the petitioner is laying her claim that her title under Ex. B-2 has not been divested, therefore, she is entitled to continue to be in possession in her own right as owner of the property. In this view, I also need not go into the question whether it is an injury within the meaning of O. 39, R. 1(c) and whether the petitioner can seek an injunction against the person under the garb of adjudication under O. 21, R. 97, against the person claimed to be lawfully obtained the decree and whether the decree is binding on the petitioner. The Court below is to note that any observations made herein are only to find whether application is maintainable. It is to decide on merits. But pending enquiry into the petition, what are the equities to be worked out in this petition is the next question. Admittedly, the property is in the possession of the tenants. The petitioner has been collecting the rents. But, if ultimately it is found that the petitioner has lost her title, instead of driving the second respondent to a suit to recover the amount, suitable direction for deposit of the rent could be given. It is stated that the petitioner has got a statutory charge on the property for recovery of the unpaid purchase money under Ex. B-2. It is a matter yet to be decided. Interests of parties will be safeguarded by directing the petitioner to deposit a sum of Rs. 2,000/- collecting as rent per month to the credit of E.P. 42/85 and continue to deposit the said amount every month on or before 15th, starting from August 16, 1986. On such deposit, the same may be kept in Fixed Deposit in a nationalised bank so that the interest accrued thereon will enure to the successful party. Accordingly, the order of the lower Court is set aside and the matter is remitted for enquiry under O. 21, Rr. 98 and 101 of the Code and pass appropriate orders according to law. The C.R.P. is accordingly allowed, but in the circumstances, without costs.
12. Petition allowed.