Sibghat Ullah Khan, J. - (1.) LIST revised. No one appears for the contesting respondents. Heard learned Counsel for the petitioner. Respondent No. 3 M/s. Allahabad Theaters filed a suit for eviction against respondent No. 2 Smt. Kusum Kumari being O.S. No. 38 of 1966 which was decreed on 30.4.1982 against which First Appeal No. 338 of 1982 was filed in this Court which has now been remitted to the District Judge due to change of pecuniary jurisdiction of District Judge to hear the first appeal.
(2.) FOR execution of the decree passed in the suit execution Case No. 26 of 1982 was filed. Petitioner Radhey Shyam filed Misc. Case No. 65 of 1983 under Order XXI, Rule 97, Rule 97, C.P.C. in the said execution case stating therein that he was independently in possession of the property in dispute and his possession was not through the judgment debtor hence he must not be evicted in the execution proceedings. In the said case stay application numbered as 3 -C was also filed. On 15.11.1984 through Annexure -11 stay application 3 -C was rejected. In the body of the order Civil Judge, Allahabad mentioned that application under Order XXI, Rules 97 and 99, C.P.C. was not maintainable unless the applicant who was a person other than the judgment debtor was dispossessed. Even though through the said order, only stay application was rejected but clear finding was also recorded that main case of the petitioner i.e. Misc. Case No. 65 of 1983 was not maintainable. It has been stated by the learned Counsel for the petitioner that through this order virtually as well as actually the entire case stood dismissed and in the order sheet of 19.11.19 it was mentioned that it (i.e. the main case) must be consigned record. Prior to 1997 the view of the different High Courts was the unless the person claiming independent title was dispossessed, he could not file application under Order XXI, Rules 97 and 99, C.P.C. Moreover, the Supreme Court in V. Chaudhary v. R.K. Jaiswal : AIR 1997 SC 856 held that even before dispossession a person other than judgment debtor claiming independent title could approach the Executing Court. Even though the impugned order when passed was in accordance with the interpretation of the relevant provision of law as adopted by different High Courts, however, due to subsequent aforesaid authority of the Supreme Court the said view has become erroneous.
(3.) ACCORDINGLY , impugned order is set aside. Civil Judge, Allahabad is directed to decide the petitioners objections numbered as Misc. Case No. 65 of 1983 on merit.;