- (1.) The appellant had obtained a decree in Second Appeal No. 175/71 from the High Court of Rajasthan on March 21, 1979 of ejectment of Ram Kishan, mesne Profits till date of possession and also arrears of rent. That decree had become final. Thereafter, the appellant filed an execution application under O.21, R. 35(3) of the Code of Civil Procedure, for short the C.P.C. on May 24, 1979, Therefore, when one Satyanarain, the first respondent in this appeal had obstructed delivery of the possession, on the next day, namely, May 25, 1979, he made an application under O.21 R. 35(3) for police assistance to remove the obstruction caused by Satyanarain. The Court directed the appellant to make an application under O.21 R. 97 pursuant to which the appellant made second application on July 18, 1979 under O.21, R. 97, C.P.C. for removal of obstruction caused by Satyanarain. The District Munisf, Executing Court, on January12, 1981, dismissed that application as being barred by limitation under Art. 129 of the Schedule to the Indian Limitation Act, 1963. On the even day, he filed a third application under O.21 R. 97, C.P.C. which was dismissed on February 20, 1982 as being barred by resjudicata. On an appeal filed by the appellant, the Civil Judge, Bikaner, by his Order dated May 19, 1983, directed removal of the obstruction holding that the third application was not precluded to be filed by the appellant. The High Court in Civil Revision No. 352 of 1983 filed by Satyanarain in the impugned order dated February 3, 1987 set aside the order of the appellate court and confirmed that of the Executing Court. On further review, the High Court confirmed its earlier order. Thus, this appeal by special leave against both the orders.
(2.) The crux of the question is whether the application filed on May 25, 1979 by the Appellant, though purported to be under O.21, R. 35(3) against Satyanarain, is convertible to be one under Order 21, Rule-97 Order 21, R.35(3) provides that: "35(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decreeholder in possession."
(3.) A reading of O.21 R.35(3) postulates that the person in possession of the immovable property to be delivered under the decree must be per force bound by the decree. Admittedly, Satyanarain was not a judgment- debtor and that therefore, he is not bound by the decree unless he claims right, title or interest through the judgment-dabtor, Ramkrishan. The person resisting delivery of possession must be bound by the decree for possession. In other words the resistor must claim derivative title from the judgment debtor. The court gets power under O.21, R. 97 to remove such obstruction or resistance and direct its officer to put the decree holder in possession of the immovable property after conducting enquiry under Rule 97. Order -21, Rule 97 provides thus:. "97, Resistance or obstruction to possession of immovable property... (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree 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. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained." ;