MILAP CHANDRA, J. - (1.) THIS revision petition has been filed against the order of the learned District Judge, Balotra dated April 19, 1989 by which he has rejected the application of the petitioner dated 1. 4. 89 for hearing him before dispossessing him from the disputed premises in execution of the warrant for the delivery of possession to the decree-holders-non-petitioner No. 1. The facts of the case giving rise to this revision petition may be summarised thus.
(2.) THE decree-holder-non-petitioner No. 1 Parasmal obtained a decree for ejectment against his tenants Pharas Ram, Ramesh Chandra, Kalu @ Madhavlal & Smt. Tulsi. This Court granted time for two months to make payment and to deliver the actual & physical possession of the suit premises by order dated 14. 12. 87. On their failure to comply with the order, the execution application was moved. Warrant for the delivery of possession was issued. THE judgment-debtor No. 2 Ramesh Kumar being the Clerk of Shri Hansaram, Advocate, Siwana, came to know about it. He brought the petitioner Hansuddin and other memberas of his family in the suit Kremises. THE judgment debtors sought time to file reply and make payment but they failed to do so, when the Sale Amin came to ex-ecute the warrant, the petitioner Hansuddin told him that he is in occupation & possession of the suit premises independently as a tenant of the decree-holder and he is not bound with the decree under execution. THEreafter, the decree-holder moved an application stating that the petitioner and members of his family who did not allow the execution of the warrant, are the man of the judgment-debtors, they are not his tenants, they have no independent right to occupy the suit premises and they are bound with the decree under execution. It has also been stated in the application that the judgment-debtor No. 2 Ramesh Kumar is the clerk of Shri Hansa Ram, Advocate practising in Siwana and the petitioner does typing & photo-state copying work in front of the court premises at Siwana It was prayed in the application that warrant for delivery of possession be again issued and the actual & physical possession of the suit premises be delivered to the decree-holder after evicting the judgment-debtor his agent & persons. THE same day, an application was moved by the petitioner Hansuddin stating that he is not bound with the decree under execution, he is in possession of the suit premises independently as a tenant of the decree-holder no action can be taken against him ian the execution proceedings. He prayed that he may be heard before any action is taken against him in these execution proceedings, After hearing the parties, the learned District Judge rejected the application of the petitioner and allowed the application of the decree-holder, by his order dated April 19, 1989, which has been challenged in this revision petition. The learned counsel for the petitioner contended that the application of the decree-holder dated 1. 4 89 was an application moved under Order 21 Rule 97, C. P. C. and as such it was neccessary for the Executing Court to hold an enquiry under Order 21. Rule 101, C. P. C. and no fresh warrant for the delivery of possession could be issued before completing the enquiry. He further contended that the petitioner is in occupation and possession of the disputed premises independently as a tenant of the decree-holder he is not bound with the decree under execution and he cannot be evicted in these execution prceedings. He relied upon Bhagwan Das v. Sampat Ram, (1) During the arguments, the learned counsel for the petitioner produced certified copies of the applications of the decree-holder and the petitioner dated 1. 4. 89 and also the application dated 20. 4. 89 of decree-holder for police help and for permission to break open the lock for delivering the possession of the disputed premises. At the out-set, it may be observed that the learned District Judge has mentioned in his order under revision that the petitioner has not producead any rent note and he could not tell when and how the disputed premises was let out to him. In para No. 3 of the revision petition, it has been stated that the petitioner came into the vacant, possession of the disputed premises on the request of the non-petitioner No, 1 Parasmal decree-holder, it was given to him on rental basis and in this way there exists relationship of landlord and tenant between him and the decree-holder. Necessary particulars about the tenancy have not been given in it. The revision petition was listed on April 26, 1989. Arguments were partly heard on that day and April 27, 1989 was fixed for (he remaining arguments. Despite opportunity, the learned counsel for the petitioner could not show any material indicating that the disputed premises was in fact taken by the petitioner on rent from the decree-holder. In the absence of necessary particulars about the tenancy and any document showing the relationship of landlord and tenant in between the decree-holder and the petitioner, it cannot he said that the petitioner is occupying the disputed premises independently and he has not been inducted in it the by the judgment-debtors. The decree-holder clearly stated in his application dated 1. 4. 89 that judgment-debtor No. 2 Ramesh Kumar is the clerk of Shri Hansaram, Advocate Siwana and the petitioner Hansuddin does typing & photo-stat copying work in front of the court premises at Siwana. These facts have not been denied in the revision petition. Till December 14, 1987 the judgment-debtors were seriously contesting the case in this Court. The application of the decree-holder dated April 1, 1989 is not an application under Order 21 Rule 97, C. P. C. It is simply an application under Order 2! Rule 35, C. P. C. In this application, the decree-holder has clearly stated that the petitioner and other members of his family are the agent and persons of the judgment-debtors No prayer , has been made for holding an enquiry about their possession. On the contrary, it is specifically prayed that warrant for the delivery of possession be again issued and the judgment-debtor and his agents and persons who may be found in the disputed premises, be evicted and actual & physical possession of it be delivered to him.
(3.) IT is well settled law that an application under Order 21 Rule 97, C. P. C. can be filed either by the decree-holder or the auction-purchaser. A stranger cannot move an application under it. His remedy is either to move an application under Order 21 Rule 99, C. P. C. after he is dispossessed or to file a suit for injunction even before dispossession. The learned District Judge has quoted a number of rulings of this Court as well as other High Courts taking this view. The facts of the case Bhagwan Dav vs. Sampat Rao (Supra) are quite different & distinguishable. In this case, the question regarding the maintaina-qility of the application of a third person under Order 21 Rule 97, C. P. C. was not at all under consideration. The learned counsel for the petitioner could not show as to to how the cases of Smt Sridevi vs. Kashiram (2) and Gangaiam vs. Devi Singh (3) are not applicable in this case. Thus there is no force in the revision petition. Consequently, the revision petition is summarily dismissed. If despite this, order, the petitioner and his men obstruct in exectusion of the warrant for delivery of possession issued in the execution case, the Executing Court may consider to file a complaint against them under Section 186, I. P. C. Let a copy of this order be sent to the learned District Judge, Balotra. . ;