S.U.Khan, J. - (1.) S .S.C. Suit No. 111 of 1999 for ejectment and ancillary relief was filed by Smt. Durga Devi, respondent No. 3 against Shyama Kant Pathak, respondent No. 4. The suit was decreed ex -parte on 19.10.2000 by J.S.C.C., Varanasi. Thereafter, petitioner Ram Sukh Tripathi filed an application under Order XXI, Rule 97, C.P.C., stating therein that infact he was the tenant and not Shyama Kant Pathak therefore, the ex -parte decree was not executable against him as he was in possession in his own right and not through Shyama Kant Pathak. The said application was filed after filing of execution application by respondent No. 3 which was registered as execution case No. 50 of 2000. The application was filed on 11.4.2001. J.S.C.C., Varanasi by order dated 22.5.2001 rejected the application of the petitioner by holding that until petitioner was dispossessed application made under Order XXI, Rule 97 purporting to resist the execution was not maintainable. Petitioner filed a revision against the same being S.C.C. Revision No. 43 of 2001. The Revisional Court/District Judge, Varanasi by judgment and order dated 24.5.2001 dismissed the revision hence this writ petition. Initially the view of different High Courts was that until a person claiming himself to be in lawful possession was wrongly evicted in execution of decree passed against some other person, he was not entitled to file application under Order XXI, Rule 97, C.P.C. It was held that enquiry into the nature of possession before dispossession of such person could be made by the Executing Court only if decree holder opted to file an application stating therein that he was wrongly being resisted in execution. However, Supreme Court in the authority in B.D. Johiri v. R.P. Jaiswal and others : AIR 1997 SC page 856 has held otherwise. The Supreme Court placing reliance upon Order XXI, Rule 35 has held that application by such a person was maintainable under Order XXI, Rule 97 even before his dispossession.
(2.) ACCORDINGLY , the view of both the Courts below is erroneous in law. Writ petition is allowed. The impugned orders are set aside. Learned Counsel for the petitioner has stated that petitioner has also filed a suit being Original Suit No. 699 of 1993 which is pending in the Court of City Magistrate, Varanasi and in the said suit temporary injunction has been granted to the petitioner restraining the respondents 3 and 4 from evicting the petitioner in pursuance of ex -parte decree dated 19.10.2000 passed in S.C.C. Suit No. 111 of 1999. In my opinion simultaneous proceedings before Executing Court as well as before Regular Court are not maintainable or atleast appropriate. Learned Counsel for the petitioner has undertaken that in case the writ petition is allowed and J.S.C.C. is directed to decide the objections on merit he will withdraw the suit.
(3.) ACCORDINGLY , it is directed that the petitioner shall get the suit dismissed as withdrawn by 15.7.2004. Learned Counsel has further undertaken that no effective steps meanwhile will be taken by the petitioner in the suit. J.S.C.C., Varanasi is directed to decide the objections dated 11.4.2001 of the petitioner copy of which is Annexure -6 to the writ petition on merit. The J.S.C.C. shall try to dispose of the objections finally after hearing learned Counsel for both the parties as expeditiously as possible preferably within a period of four months. Until decision of the objections petitioner shall not be evicted from the premises in dispute in execution of ex -parte decree. Both the parties are directed to appear before the J.S.C.C., Varanasi on 16th July, 2004.;