SHARMA, J. - (1.) BHAGWANDAS and his son Ramdayal, hereinafter to be referred to as the appellants brought a suit in the court of Munsif, Alwar, for ejectment and arrears of rent against Sampatram, hereinafter to be referred to as respondent No. 1. This suit was decreed for ejectment and for a portion of the arrears of rent claimed on 22nd May, 1948. Both the parties went in appeal but the learned Additional District Judge, Alwar, who heard both the appeals dismissed them. Both the parties took second appeals to the Matsya High Court at Alwar, but both the appeals were dismissed on the 27th April, 1949. Before the appeals filed in the District Judge's court were decided the appellants had taken out execution on 13th December, 1948 and in the column of relief they prayed that Ramgopal, who was the brother-in-law of Sampat Ram, who obstructing possession and so possession of the disputed property be delivered to the decree holders. This application only prayed for the relief of possession and did not make any prayer for the recovery of the arrears of rent or costs. Learned Munsif issued notice to the judgment-debtor but not to Ramgopal who is hereinafter to be referred to as respondent No. 2. Respondent No. 2 made an objection in the execution court on 30th April, 1949 stating that he was in possession of the property in his own right as tenant-in-chief of the decree-holders themselves and could not be ejected in execution of the decree against Sampatram. The court proceeded to make an enquiry in the case. Both the parties produced their evidence and the learned Civil Judge, Alwar to whose court proceedings had been transferred. , held that the respondent No. 2 was in possession of the property in dispute independently in his own right as tenant-in-chief of the decree-holders and could not therefore be ejected in execution of the decree against Sampatram. Again this order of the learned Civil Judge the appellants filed an appeal in the court of the District Judge, Alwar, who dismissed the appeal on the ground that the appeal was not maintainable and also on merits. Against the order of the learned District Judge a second appeal has been filed in this Court which is No. 24 of 1952. An application for revision has also been filed against the order of the Civil Judge and it is application No. 175 of 1952. The revision application has been filed as a precautionary measure in case the second appeal is found to be not maintainable.
(2.) AS the appeal as well as the application for revision arise out of the same order of the Civil Judge, both are being disposed of by this judgment. It was argued by Mr. Ram Avtar Gupta on behalf of the appellants that the application for execution was made by the appellants under Order 21, Rule 11c. P. C. and there was no occasion for the execution court to apply the provisions of Order 21, Rule 97 C. P. C. It was argued that in the original suit against Sampatram it had been decided by the Matsya High Court that Ramgopal was merely a licensee of Sampat Ram. This finding is binding and he can therefore be ejected in execution of the decree against Sampat Ram who is his licensor. Two rulings of the Calcutta High Court in the case of Sailendra Nath Bhattacharjee vs. Bijan Lal Chakravarty and other (1) (A. I. R. 1945 Cal. 283.), and the other in the case of Kalidas Dutt vs. Harendra Nath Mukherjee and others (2) (A. I. R. 1932 Cal. 243.) were relied upon. It was further argued that in any case the Civil Judge had no power to dismiss the execution application against Sampat Ram. On behalf of the respondent No. 2 it was argued by Mr. Basant Kishore Bhargava that the application for execution though mis-described as application under Order 21 Rule 11 C. P. C. was really an application under Order 21, Rule 97 C. P. C as the allegations made were that Ramgopal was not giving possession of the property to the decree-holders and possession should therefore be given through court. The court made an enquiry as in a case under Order 21, Rule 97 C. P. C. and after hearing both the parties passed an order which is an order under Order 21,, Rule 99 C. P. C. Against such an order no appeal lies. The second appeal is therefore incompetent. As regards revision, it was argued that the learned Civil Judge has held that respondent No. 2 was in possession of the property in suit in his own right independently of respondent No. 1 as a tenant-in-chief of the decree-holders themselves. This is a finding of fact given on evidence in the case and cannot be challenged in an application for revision. It was further argued that the two rulings which have been relied upon by the learned counsel for the appellants do not at all help the appellants in this case as in the two cases before the Calcutta High Court it was held that the person obstructing was the sub-tenant of the tenant-in-chief against whom the decree had been obtained and therefore he was bound by the decree. It was also argued that any finding in the suit brought by the appellants against Sampat Ram alone would have no effect against respondent No. 2 as he was not a party to that suit. I have considered the arguments of both the learned counsel. The first thing that has got to be seen is whether the order of the learned Civil Judge is under Order 21, Rule 99 C. P. C. If the order is under Order 21, Rule 99 it is not appealable and only an application for revision can be filed against it or a regular suit might be brought under Order 21, Rule 103 C. P. C. Looking to the application for execution which was made by the appellants, no doubt it has been described to be an application under Order 21, Rule 11 C P. C. But there is a complaint in this application that Ramgopal being the brother-in-law of the judgment-debtor Sampat Ram was resisting delivery of possession of the property to the decree-holders and the possession be therefore awarded to the decree-holders. Thus there is a clear allegation that the person who was not the judgment-debtor was resisting delivery of possession. The application was therefore clearly an application under Order 21, Rule 97 C. P. C. An inquiry was also made by the execution court in the manner an inquiry is made on an application under Order 21, Rule 97 C. P. C. The order of the learned Munsif also shows that it was an order under 21, Rule 99 C. P. C. I am therefore in perfect agreement with the learned District Judge that no appeal lay against the order of the Civil Judge. The second appeal is therefore incompetent, and fails on this ground. Coming to the application for revision I find that the learned Civil Judge has decided as a fact that respondent No. 2 Ramgopal was holding the property independently in his own right as the tenant-in-chief of the decree-holders. This finding was arrived at on the oral and documentary evidence produced by| the parties in that court. There is therefore no ground for interference With this finding of fact of the learned Civil Judge in civil revision under sec. 115 C. P. C. Learned counsel for the appellants argued that a finding having been given in the original suit between the appellants and respondent No. 1 the execution court had no right to go against that finding. I do not think this argument has any force. Respondent No. 2 was not a party to that suit and no finding arrived at in that case can bind him. As regards the two rulings of the Calcutta High Court produced by the learned counsel for the appellants I can only say that the facts of this case are clearly distinguishable from the facts of those cases. In those cases it was decided that the person obstructing was the sub-tenant of the lessor against whom a decree had been obtained and therefore it was held that he was bound by the decree and execution could proceed against him. In the present case the learned Civil Judge has negatived the case of the respondent No. 2 being a licensee of respondent No. 1 and has clearly held that he was holding the property independently of his own right as a tenant-in-chief of the decree-holders. The two rulings, therefore, do not apply to the facts of the present case. As regards the contention that the learned Civil Judge ought not to have dismissed the execution application of the appellants, suffice it to say that the only prayer made in the application was for the possession of the property and the execution court having held that respondent No. 2 who was the judgment-debtor was holding the property in his own right, the execution application as filed became infructuous. There was no prayer in the application about the recovery of the amount of arrears of rent or costs decreed. The application in question was therefore rightly dismissed after the finding that the property was in possession of a person who was holding it independently of the decree-holders. The appeal as well as the application for revision is dismissed with costs to Ramgopal respondent No. 2 in the second appeal and the opposite party in the revision application. . ;