Jawahar Lal Gupta, J.
1. Has the Executing Court erred in rejecting the objections filed by the petitioner under Order 21 Rule 357. This is the short question that arises for consideration in this revision petition. A few facts as relevant for the decision of this case may be briefly noticed.
2. Smt. Parkash Rani Sharma filed a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973. It was decreed on August 27, 1994. She filed an execution petition for taking possession from Jiwan Ram, the tenant, in the demised premises, the present petitioner-Harkesh filed an application under Order 21 Rule 35 read with Section 151 on the ground that he was in possession of the property in dispute. He had not been made a party in the proceedings for eviction. Thus, he was not bound by the decree dated August 27, 1994. The claim as made by the petitioner was controverted by the respondent-landlady. Vide order dated January 18, 1996 the Executing Court rejected the petitioner's objections. Hence this revision petition.
3. Mr. P.S.Rana, learned counsel for the petitioner, contends that the order for eviction had been passed on the ground that Jiwan Ram had unauthorisedly sublet the demised premises to the present petitioner. Thus, he was a necessary party. Having not been impleaded as a party in the proceedings before the Rent Controller, the petitioner was not liable to be evicted in execution by the orders of eviction. He further submits that the Executing Court had erred in rejecting the objections filed by the petitioner under Order 21 Rule 35 without granting an opportunity to lead evidence.
4. Mr. Manchanda, learned counsel for the respondents, has controverted the claim as made on behalf of the petitioner. He submits that the petitioner has no right or title in the property. He had filed a suit for injunction. It had been dismissed. The matter has been finally concluded by the judgment of this Court in R.S.A. No. 97 of 1999 decided on November 15, 1999. Thus, the claim as made by the petitioner cannot be sustained.
5. After hearing counsel for the parties, it is clear that the petitioner claims to be in possession of the property in dispute. He was admittedly not a party to the proceedings under Section 13 of the Act. He had filed objections under Order 21 Rule 35 alleging inter alia that he was a tenant in the premises. In view of the rule laid down by their Lordships of the Supreme Court in Ram Chandra Verma v. Jagat Singh Singhi 1996(1) Recent Revenue Reports 690 the petitioner was a necessary party. He had to be given an opportunity to lead evidence and thereafter his objections had to be considered. In the circumstances of the case, failure of the Executing Court to grant him an opportunity had resulted in miscarriage of justice.
6. Mr. Manchanda contends that the Executing Court cannot go behind the decree. There is no quarrel with this proposition. However, the fact remains that the petitioner was not a party in the proceedings under Section 13 of the Act. Yet, he is sought to be evicted in execution of the order passed against Jiwan Ram. Fairness demands that he should be given an opportunity to prove his case.
7. Thus, without expressing any opinion on merits, the order passed by the Executing Court is set aside. The case is remanded for a fresh decision after giving an opportunity to the parties to lead evidence, Since the proceedings have remained pending for along time, it is directed that the decision shall be expedited. Mr. Rana states that the petitioner shall produce evidence at his own responsibility on two dates of hearing whichmay be fixed by the trial Court. The Court may, however, issue Dasti summons if necessary. Similar opportunity shall be given to the respondents. The Court shall decide thematter within six months from the date of receipt of this order. The parties through theircounsel are directed to appear before the Executing Court on November 11, 2002.