D.N.JOSHI, J. - (1.) THE instant revision petition has been filed against the judgment and order dated 11.1.2001 passed by the learned Additional District Judge No. 2, Bhilwara in Civil Misc. Appeal No. 17/2000, by which he dismissed the appeal against the order of Civil Judge (J.D.)-cum-Judicial Magistrate, Ist Class (East) Bhilwara passed in Civil Misc. Case No. 80/2000-Kantilal & Anr. v. Ahmed Hussain & Anr. on an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
(2.) HEARD Mr. K.R. Jangid, learned counsel for the petitioner-revisionist and Mr. D.S. Shishodia, learned counsel for the non-petitioner. The facts of the case in brief are that the petitioner filed a civil suit against the defendant M/s. Indermal Jeetmal, a registered partnership firm at Bhilwara for eviction and arrears of rent being Civil Suit No. 303/82-Ahmed Hussain v. Firm M/s. Indermal Jeetmal in the Court of Munsif and Judicial Magistrate, Bhilwara. This suit of the plaintiff petitioner was decreed by the learned Civil Judge (J.D.)-cum-Judicial Magistrate, First Class (East), Bhilwara by a judgment and decree dated 4.12.1996. Against the order dated 4.12.1996, a First Appeal preferred by the defendant M/s. Indermal Jeetmal was dismissed by the learned Additional District Judge No. 2, Bhilwara by its judgment dated 7.4.2000. The defendant then filed a second appeal against the judgment dated 7.4.2000, which was also dismissed by this Court on 30.5.2000 in S.B. Civil Second Appeal No. 12/2000. Thereafter, the plaintiff filed a Civil Execution Petition before the learned Civil Judge (J.D.)-cum-Judicial Magistrate, Ist Class (East), Bhilwara for delivery of possession of the suit shop. At this stage, objections to execution were filed by the respondents No. 1 and 2 purporting to be under Order 21 Rules 97, 98 and 101 CPC alleging therein that one Sohanlal, the father of respondent No. 1 and grand-father of respondent No. 2 had taken the suit shop on rent from the plaintiff-petitioner on 1.2.1969 for respondent No. 3 Firm M/s. Indermal Jeetmal. In the said suit shop initially, Sohanlal did his cloth business and thereafter the Firm M/s. Indermal Jeetmal did that business and in that business, Sohanlal, Jamsumal and Nanalal were partners. Sohanlal died on 7.6.1980 but one year before the said partnership business had come to an end and respondent No. 1 and his father Sohanlal did their cloth business and after death of Sohanlal, respondent No. 1 and his son started their business of utensils and the suit shop remained in their possession in the capacity of tenant and continue to be so. The plaintiff-applicant after the death of Sohanlal and after dissolution of the Firm M/s. Indermal Jeetmal, hands in glove with the erstwhile partner Jamsumal, brought a suit against the defunct firm M/s. Indermal Jeetrnal and obtained a decree for eviction in that collusive suit. In that suit, the tenant Sohanlal and his legal heirs respondents No. 1 and 2 were not made party and therefore, they are not bound by the said decree. The plaintiff- petitioner wants to dispossess respondents No. 1 and 2 in execution of decree and under Order 21 Rule 97 CPC they are entitled to get their right, title and interest in respect of the suit shop determined.
(3.) AFTER filing the said application under Order 21 Rule 97 CPC; the respondents No. 1 and 2 filed another application under Order 39 Rules 1 and 2 CPC being Civil Misc. Case No. 80/2000 praying therein by way of temporary injunction that the plaintiff's petitioner may be restrained from executing the decree till their objections under Order 21 Rule 97 CPC are decided. This application for temporary injunction was allowed by the ]earned Civil Judge (J.D.)-cum-Judicial Magistrate, 1st Class (East), Bhilwara by order dated 17.2.2000 and an appeal against the order was dismissed by the learned Additional District Judge No. 2, Bhilwara by order dated 11.1.2001. Against the orders dated 17.7.2000 and 11.1.2001, the instant revision petition has been filed.;