N.K. Jain, J. - (1.) THIS miscellaneous appeal is directed against the order of learned Additional District Judge, No. 1, Jodhpur in Civil misc. case No. 70 -B/90 whereby the appellant's application under 0.39 Rule 1 and 2 read with Section 151 C.P.C. has been rejected.
(2.) THE main contention of Mr. Bhoot is that the court has acted without jurisdiction in deciding the application without any order passed by executing court under Order 21 Rule 98 C.P.C. The court should have issued notice under Order 21 Rule 97 to the decree -holder particularly in view of the report of the Sale Amin dt. 1.5.90 and thus, the order is liable to be set aside in this misc. appeal. Mr. Y.R. Vyas, Power of attorney holder of the respondent who has appeared in person has submitted that the respondent has obtained a decree for a shop with godown against the petitioner long back and he has obtained a part of the possession of the godown on 2.8.84 in execution of this decree which was passed in the year 1978. He has also submitted that the appellant is a stranger and he has no right to be heard and with the connivance of the judgment -debtor for one reason or the other dragging litigation and delaying the execution of the decree.
(3.) I have heard Mr. M.C. Bhoot, learned Counsel for the appellant and Mr. Y.R. Vyas, learned power of attorney holder of the respondent and gone through the plaint and report dt. 1.5.90 as well as the orders of this Court alongwith the relevant provisions of law. This appeal is pending since 12.9.90. As agreed by learned Counsel for the parties, the same has been heard finally at the admission stage.;