Lahiri, J. - (1.) This Rule is directed against an order made by the 4th Subordinate Judge, Alipur, in Miscellaneous Judicial Case No. 40 of 1957 arising out of Execution Case No 17 of 1957 of that court. The order is one under Order XXI, Rule 98 of the Civil Procedure Code and the petitioner before us is the objector. The facts which are material for the purposes of this Rule may be briefly stated as follows:
(2.) On 25-3-1954, opposite party No. 1, Sreemati Renuka Debi obtained a compromise decree for ejectment against three persons named Gobardhan Das Barma who was a tenant of the first degree, Protap Chandra Mitter and B. R. Sarma who were sub-tenants under Gobardhan Das Barma. Under the terms of the compromise the persons against whom the decree was obtained were to vacate the premises on or before the 30th of April, 1954. The subject-matter of dispute is the entire first floor of premises No. 24A Mohini Mohan Road excepting one room. It appears that the decree-holder applied for execution of the decree on four previous occasions and on some occasions she was resisted by the present petitioner P. N. Pathak Sarma. In one of the execution cases opposite party No. 1 was directed to file an application under Order XXI, Rule 97 of the Code of Civil Procedure but she did not choose to do that and allowed the execution case to be struck off. The execution case out of which the present proceeding arises- was started by the decree-holder opposite party No. 1 on 29-4-1957. In this execution case the petitioner filed an application on 14-5-1957, purporting to be under Section 151 and Order XXI, Rule 97 of the Code of Civil Procedure for a direction that he was in possession of the premises as a tenant in his own right for several years and that the decree-holder should have proceeded first under Order XXI, Rule 97 of the Code before proceeding further with execution. He made a further prayer for a direction that the decree-holder be given such possession as the property v/as capable of and also for a direction upon the decree-holder not to disturb the possession of the petitioner in respect of the portion of the premises which was in his occupation. This application was heard by the executing court on 21-5-1957. In the meantime the decree-holder had applied for issue of a writ of delivery of possession. On hearing the respective cases of the parties the executing court after recounting the previous history of the case came to the conclusion that in view of the previous conduct of the petitioner P. N. Pathak Sarma it was not necessary to issue a writ of delivery of possession and came to the following finding: "The present petition in my opinion virtually amounts to a resistance to the decree-holder for obtaining possession of the premises claimed to be in the possession of the applicant. It would be merely piling unreason upon technicality to ignore the entire past and allow the writ for delivery of possession to be issued on the facile plea that the decree-holder should meet with a resistance in order to be able to apply under Order 21, Rule 97 of the Code of Civil Procedure when in point of fact there has been such resistance on every occasion in the past and when there has been a virtual resistance again by the present applicant upon his application dated 14-5-1947." Upon this finding the executing court directed the decree-holder to file an application under Order XXI, Rule 97 of the Code of Civil Procedure. This order was made by the executing court on 28-5-1957, and on the same date opposite party No. 1 acting upon the aforesaid order filed her application under Order XXI, Rule 97 of the Code complaining of resistance to possession in execution of the decree. Upon this application of the opposite party No. 1 the executing court made an order in favour of the decree-holder on 1-2-1958.
(3.) Two objections were raised by the petitioner to the application filed by the opposite party No. 1. The first one was to the effect that the application under Order XXI, Rule 97 was barred by limitation and the second was to the effect that the petitioner was entitled to be in possession in his own right. Both these objections were overruled by the learned Subordinate Judge and against that order the petitioner has obtained this Rule.;