Decided on December 27,1950

Raghunath Gupta Appellant
Nand Ram Varma And Anr. Respondents


Weston, J. - (1.) THE facts giving rise to the Appellant are shortly these: On 26 -7 -1948, the owner of a house in 14 Faiz Bazaar Road at Delhi, who had filed a suit in ejectment against one Jaiswal alleged to be his tenant, entered into a compromise with this Jaiswal and on this compromise a consent decree was passed directing delivery of possession to the Plaintiff by Jaiswal. Following this decree the D.H. took out a warrant under Order 21, Rule 35, Code of Civil Procedure, returnable on 6 -11 -1948, but when the Bailiff went to the house delivery of possession was obstructed by three persons one of whom was Raghunath Gupta, tho present Applicant before me. On the 5th of November following these obstructions the D.H. made two Appellants under Order 21, Rule 97 in respect of the obstructions caused. 19 -1 -1949 was the date fixed for hearing these Appellants. On that date, neither the D.H, nor any of the obstructers appeared and the Appellants of the D.H. were dismissed for default. Appellants or restoration were later dismissed on 9 -4 -1949. On 5 -7 -1949, the D.H. filed a fresh Appellant under Order 21, Rule 35, and on some other date, according to Counsel for the present Petitioner he filed a suit under Order 21 Rule 103, which the learned Counsel says was dismissed apparently for default on 4 -5 -1950. The learned Counsel for the Respondent does not admit that any such suit was filed, and there is nothing on record before me on which the matter can be determined. There is no suggestion, how -ever, as the foregoing account indicates, that any suit is at present pending. To the second execution Appellant the present Applicant took objection and his claim was that no second execution Appellant could lie. The learned Subordinate Judge, 1st Class, Delhi, has held that a second execution Appellant can lie and the Applicant has now come in revn.
(2.) IT has been urged before me that the dismissal for default was an order under Order 21, Rule 99, but on the wording of Rule 99 it is dear that this argument cannot be supported. Rule 99 is in these terms: 99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the J.D.) claiming in good faith to be in possession of the property on his own account or on account of some person other than the J.D.), the Court, shall make an order dismissing the Appellant. There was no question of the Court when it dismissed for default being satisfied about anything except that the Applicant had not attended the Court. This being so, clearly Rule 103, Order 21 can have no application, and the dismissal would not become conclusive on failure of the D.H. to file a suit within one year of the order. As a result there could be no bar to the filing of a fresh Appellant I under Order XXI (21) Rule 35. This was so held by at F.B. of the Bombay H.C. Mukund Bapu v. Jamu Sakhu 35 Bom. L.R. 1033 and this finding is enough to conclude the matter which directly arises in this revn. Appellant. As in the Bombay case, considerable argument has been advanced before me whether, consequent on the absence of or non -prosecution of an Appellant under Order 21, Rule 97, the summary procedure provided by that Rule and the following Rules remains available to the D.H. In the Bombay case a definite opinion was expressed that if the second obstruction was made by the same person and in the same capacity then the second obstruction must for the purposes of Article 167, Limitation Act, relate back to the first obstruction. No reason was given for expression of this view which clearly was obiter, and I do not wish to express any definite opinion on the matter; but as at present advised I am inclined to doubt whether the opinion expressed by the Bombay H. Court represents correct law. It will be a matter for the Court below if and when the state of further proceedings under Rule 97 arises to come to its own conclusion in the matter. I can see no reason to interfere with the order now applied against and I discharge the Rule with costs which I assess at Rs. 30.;

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