BHANWARLAL Vs. SATYANARAIN

JUDGEMENT

(1.) THE appellant had obtained a decree in Second Appeal No. 175/71 from the High Court of Rajasthan on March 21,1979 of ejectment of Ram Kishan, mesne profits till date of possession and also arrears of rent. That decree had become final. Thereafter the appellant filed an execution application under order 21 Rule 35 (3) of the Code of Civil Procedure, for short the CPC, on May 1979J Thereafter, when one Satyanarain, the first respondent in this appeal had obstructed delivery of the possession on the next day, namely, May 25,1979" he made an application under Order 21, Rule 35 (3) for police assistance to more the obstruction caused by Satyanarain. The Court directed the appellant to make an application under Order 21, Rule 97 pursuant to which the appellant wade~ second application on July 18, 1979 under Order 21 Rule 97 CPC for remove of obstruction caused by Satyanarain. The District Munsif, Executing Court on January 12, 1981, dismissed that application as being barred by limitation under Art. 129 of the Schedule to the Indian Limitation Act, 1963. On the even day; he filed a third application under Order 21 Rule 97 CPC which was dismissed on February 20, 1982 as being barred by resjudicata. On an appeal filed by the · appellant, the civil Judge, Bikaner, by his Order dated May 19,1983, directed removal of the obstruction holding that the third application was not precluded to be filed by the appellant. The High Court in Civil Revision No. 352 of 1983 filed by Satyanarain in the impugned order dated February 3, 1987 set aside the' order of the appellate Court and confirmed that of the Executing Court. On further review, the High Court confirmed its earlier order. Thus, this appeal by special leave against both the orders.

(2.) THE crux of the question. is whether the application filed on May 25, 1979 by the appellant, though purported to be under Order - 21 Rule 35 (3) against Satyanarain, is convertible to be one under Order 21 Rule 97. Order 21 Rule 35 (3) provides that:

(3.) WHEN the appellant had made the application on May 25, 1979 against Satyanarain, in law it must be only the application made under Order 21 Rule 97 (1) of CPC. The Executing Court obviously, was in error in directing to make a fresh application. It is the duty of the executing Court to consider the averments in the petition and consider the scope of the applicability of the relevant rule. On technical ground the Executing Court dismissed the second application on limitation and also the third application, on the ground of resjudicata which the High Court has in the revision now up held. The procedure is the handmaid of substantive justice but in this case it has run its rooster.