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PETITIONER: BRAHMDEO CHOUDHARY

       Vs.

RESPONDENT: RISHIKESH PRASAD JAISWAL & ANR.

DATE OF JUDGMENT:       22/01/1997

BENCH: A.S. ANAND, S.B. MAJHUDAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      S.B. Majmudar, J.      In this appeal by special leave the appellant has posed a short question or our consideration. It runs as under:      "Whether the  appellant who  claims to  be a  stranger, occupying decretal  premises in  his own  right and  who has offered resistance  to the  execution of the decree obtained by the  decree-holder against  the judgment-debtor  qua such property can  request the Executing Court to adjudicate upon his resistance  and obstruction  without being insisted upon that first  he must  hand over possession and then only move an application  under  Order  XXI  Rule  99  Code  of  Civil Procedure (‘CPC’ for short)?"      The High  Court agreeing  with the  Executing Court has negatived the  aforesaid request of the appellant by holding that such  stranger to  the decree  who has  put forward his obstruction in the execution proceedings has the only remedy under Order  XXI Rule 99, CPC after his obstruction is first removed and  he is  dispossessed of the premises. This Court granted special  leave to  appeal  to  the  appellant  under Article 136 of the Constitution of India and granted stay of dispossession by  its order  dated 17th September 1996. Shri Sanyal, learned  senior counsel for the appellant has raised a serious  grievance against  the aforesaid view of the High Court.      For resoling  the  aforesaid  controversy  between  the appellant on  the one hand and respondent no.1 decree-holder on the other a few introductory facts deserve to be noted at the outset.      Respondent no.1  filed an  Eviction Suit No. 54 of 1988 in relation to six and a half dhurs of the suit land against respondent no.2  and his  mother Bachani  Devi. A decree was passed in  favour of  respondent no.1  against the judgment- debtor respondent  no.2 in  1988 by  the Court of Munsif II, Munger, Respondent  no.1 filed execution proceedings in 1990 against respondent  no.2 judgment-debtor.  These proceedings were registered  as Execution  Case No.  25 of 1990. On 25th April 1991  respondent no.1  decree-holder obtained  warrant for delivery  of possession from the Executing Court against respondent no.2.  When the  bailiff went  on spot to execute

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the warrant  on 28th  April 1991  he  was  resisted  by  the present appellant  as well as his brothers Sitaram Choudhary and Jago  Choudhary along  with 20-25 persons and because of the resistance  offered by  them and on account of abuses ad throwing of  bricks and  stones indulged into by them it was impossible to  execute the  warrant  for  possession.  Under these circumstances  the decree-holder  by  his  application dated 6th  May 1991  requested that  help of  magistrate and armed force  be made  available at his cost for execution of the decree.  It appears  that the  said application remained lingering on the file of Executing Court for number of years and ultimately the Executing Court directed execution of the warrant for  possession by affording help of police force to the decree-holder.  It was  at that  stage that  the present appellant filed  a written  application on 22nd January 1996 before the  Executing Court  to stay  operation of  the said warrant and  to decide  his objections. By a rejoinder dated 1st February  1996 respondent  no.1 decree-holder raised the question of  maintainability of  such an  application before handing over  actual possession  to the  decree-holder.  The Executing Court  without adjucating  upon the  objections of the appellant  on merits  and without  deciding whether  the obstruction  or   resistance  offered  by  him  was  legally justified or not dismissed the appellant’s application dated 22nd January  1996 by  order dated  15th February  1996. The Executing Court  took  the  view  that  the  remedy  of  the appellant was  to move  an application  under Order XXI Rule 99, CPC only after he was dispossessed and as that stage was not still reached the request of the appellant to adjudicate his claim  could not be entertained. It is this order of the Executing Court  which has  come to be confirmed by the High Court of  Judicature at  Patna by  the impugned  order dated 17th May 1996.      In the background of the aforesaid factual matrix it is necessary  to   have  a   look  at  the  relevant  statutory provisions governing the controversy between the parties. As respondent no.1  decree-holder seeks  to execute  his decree for possession of immovable property against judgment-debtor respondent no.2  he has  rightly invoked provisions of Order XXI, CPC  by putting  the decree for possession of immovable property into  execution. His  application for issuance of a fresh warrant for possession with the police aid as moved by him on  6th May  1991 purports  to invoke  the provision  of Order XXI Rule 35, CPC which reads as under:      "35.    Decree     for    immovable      property.- (1)  Where a  decree  is      for the  delivery of  any immovable      property, possession  thereof shall      be delivered  to the  party to whom      it has  been adjudged,  or to  such      person as he may appoint to receive      delivery on  his  behalf,  and,  if      necessary, by  removing any  person      bound by  the decree who refuses to      vacate the property.      (2) Where a decree is for the joint      possession of  immovable  property,      such possession  shall be delivered      by affixing  a copy  of the warrant      in some  conspicuous place  on  the      property and proclaiming by beat of      drum, or  other customary  mode, at      some    convenient    place,    the      substance of the decree.      (3)   Where   possession   of   any

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    building  on  enclosure  is  to  be      delivered   and   the   person   in      possession,  being   bound  by  the      decree,  does   not   afford   free      access,  the   Court,  through  its      officers,   may,    after    giving      reasonable warning  and facility to      any woman  not appearing  in public      according to  the  customs  of  the      country to withdraw, remove or open      any lock  or bolt or break open any      door or  do any other act necessary      for putting  the  decree-holder  in      possession."      A mere  look at  the  aforesaid  provision  shows  that warrant for  possession can  be straightaway  sought against persons occupying immovable property which is subject-matter of decree by the decree-holder provided such persons who are occupying the  suit property are judgment-debtors or persons claiming through  the former.  We  are  concerned  with  the situation in  which the  appellant  resisted  the  execution proceedings on  the ground  that he  was a  stranger to  the decree and  claimed an  independent  interest  in  the  suit immovable property possession of which was decreed in favour of respondent  no.1 decree-holder.  The Nazir  in his report dated 28th  April  1991  has  noted  that  the  warrant  for possession could  not be  executed on spot on account of the resistance and obstruction offered by the appellant, amongst others. Once that report was received by the Executing Court respondent no.1  decree-holder naturally became alive to the fact of  such resistance  on spot  by the appellant, amongst others. Thereafter  when he moved the application on 6th May 1991 for  issuance of  fresh warrant for possession with the help of  police force though the application purported to be under Order  XXI Rule  35 it  would strictly not fall within that provision  as the  decree-holder wanted  to bypass  the obstruction and  resistance offered  by a  stranger  to  the decree, namely the appellant who was not claiming any right, title or  interest through  the judgment-debtor. Whether his claim was  right or  wrong on  merits is a different matter. But once  such resistance  was offered  by  him  the  proper procedure which  was required  to be  followed by respondent no.1 decree-holder  was the  one contemplated  by Order  XXI Rule 97, CPC. The said provision reads as under:      "97. Resistance  or obstruction  to      possession of  immovable property,-      (1) Where  the holder  of a  decree      for  the  possession  of  immovable      property or  the purchaser  of  any      such property  sold in execution of      a decree  is resisted or obstructed      by   any    person   in   obtaining      possession of  the property, he may      make an  application to  the  Court      complaining of  such resistance  or      obstruction.      (2) Where  any application  is made      under sub-rule (1), the Court shall      proceed  to   adjudicate  upon  the      application in  accordance with the      provisions herein contained."      On the undisputed facts on record it has, therefore, to be held  that  because  of  the  resistance  or  obstruction offered by the appellant, amongst others, on 28th April 1991 the application moved by the respondent decree-holder on 6th

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May 1991  was necessarily to be one falling within the scope and ambit of Order XXI Rule 97. It is pertinent to note that the  resistance   and/or  obstruction  accordance  with  the subsequent provisions contained in the said Order. We may in this connection  also refer  to the  Schedule  to  the  CPC, Appendix E  which gives  various forms  for  summons  to  be issued to  parties in  execution proceedings especially form no.40 which  deals with ‘Summons to appear and answer charge of obstructing  execution of  decree (0.21. R.97)’. The said form reads as under:      No. 40      Summons To Appear And Answer Charge      Of      Obstructing  Execution   Of  Decree      (0.21. R.97)      (Title)      Whereas, the  decree-holder in  the      above suit,  has complained to this      Court that  you have  resisted  (or      obstructed)  the   officer  charged      with the  execution of  the warrant      for possession.:      You are  hereby summoned  to appear      in this  Court on the ...... day of      .... 19......,  at A.M.,  to answer      the said complaint.      Given under my hand and the seal of      the Court,  this ........ day of 19      .......      Judge."      It is,  therefore, clear  that in  an application under Order XXI  Rule 97  moved by  a decree-holder  who complains about the resistance or obstruction offered by any person to the decree-holder  in his attempt at obtaining possession of property and  who wants such obstruction or resistance to be removed which  otherwise is  an impediment in his way, a lis arises between  the decree-holder  applicant under Order XXI Rule 97 on the one hand and such obstructionist or resisting party on  the other,  to whom summons has been issued by the Court as  per Form  No.40. When such a lis arises, it has to be adjudicated  upon as  enjoined by  Order XXI Rule 97 sub- rule (2).  The procedure  for adjudicating such a lis has to be called  out from  the remaining succeeding Rules of Order XXI. This  directly takes  us to  the consideration of Order XXI Rule 101 which reads as under:      "101. Question  to be  determined.-      All questions  (including questions      relating   to   right,   title   or      interest in  the property), arising      between the parties to a proceeding      on an  application under Rule 97 or      Rule 99  or their  representatives,      and relevant to the adjudication of      the    application,     shall    be      determined  by  the  Court  dealing      with the  application and  not be a      separate suit and for this purpose,      the  Court  shall,  notwithstanding      anything to  the contrary contained      in any other law for the time being      in  force,   be  deemed   to   have      jurisdiction   to    decide    such      questions."      Now it  is obvious  that such questions relating to the right, title  and interest  in the  property arising between

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the parties  to any  proceedings under  Order XXI Rule 97 or Rule  99  have  to  be  adjudicated  upon  by  following  an identical gamut  of procedure  by the  Executing Court.  The said gamut  of procedure  is laid  down by Order XXI Rule 98 which reads as under :      "98. Orders  after adjudication.  -      (1) Upon  the determination  of the      questions referred  to in Rule 101,      the Court shall, in accordance with      such determination  and subject  to      the provisions of sub-rule (2),-      (a)  make  an  order  allowing  the      appli cation and directing that the      applicant   be    put   into    the      possession  of   the  property   or      dismissing the application; or      (b) pass  such other  order as,  in      the circums  tances of the case, it      may deem fit.      (2) Where, upon such determination,      the Court  is   satisfied that  the      resistance   or   obstruction   was      occasioned without  any just  cause      by the  judgment-debtor or  by some      other person  at his instigation or      on   his    behalf,   or   by   any      transferee, where such transfer was      made during  the  pendency  of  the      suit or  execution  proceeding,  it      shall direct  that the applicant be      put   into    possession   of   the      property, and  where the  applicant      is still  resisted or obstructed in      obtaining possession, the Court may      also,  at   the  instance   of  the      applicant,  order   the   judgment-      debtor, or any person acting at his      instigation or on his behalf, to be      detained in  the civil prison for a      term which  may  extend  to  thirty      days."      It is  not time  for us  to consider  Order XXI Rule 99 which reads as under:      "99. Dispossession by decree-holder      or purchaser.- (1) Where any person      other than  the judgment-debtor  is      dispossessed of  immovable property      by the  holder of  a decree for the      possession  of  such  property  or,      where such  property has  been sold      in execution  of a  decree, by  the      purchaser thereof,  he maya make an      application    to     the     Court      complaining of such dispossession.      (2) Where  any such  application is      made, the  Court shall  proceed  to      adjudicate upon  the application in      accordance  with   the   provisions      herein contained."      A conjoint  reading of  Order XXI  Rules 97, 98, 99 and 101 projects the following picture: (1)  If  a   decree-holder  is  resisted  or  obstructed  in      execution of  the decree for possession with the result      that the decree for possession could not be executed in      the normal  manner by  obtaining warrant for possession

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    under Order  XXI Rule 35, then the decree-holder has to      move an application under Order XXI Rule 97 for removal      of such obstruction and after hearing the decree-holder      and the  obstructionist the  Court can pass appropriate      orders after  adjudicating upon the controversy between      the parties  as enjoined  by Order XXI Rule 97 sub-rule      (2) read  with Order  XXI Rule  98. It  is obvious that      after  such  adjudication  if  it  is  found  that  the      resistance or  obstruction was  occasioned without just      cause by the judgment-debtor or by some other person at      his instigation  or on his behalf then such obstruction      or resistance would be removed as per Order XXI Rule 98      sub-rule (2)  and the  decree-holder would be permitted      to be  put in  possession. Even  in such an eventuality      the order  passed would  be treated  as a  decree under      Order XXI  Rule 101  and no  separate  suit  would  lie      against such  order meaning  thereby  the  only  remedy      would be  to prefer  an appeal  before the  appropriate      appellate court against such deemed decree. (2)  If for  any reason  a stranger to the decree is already      dispossessed of  the suit property relating to which he      claims any  right, title or interest before his getting      any opportunity  to resist or offer obstruction on spot      on account  of his  absence from  the place  or for any      other valid  reason then his remedy would lie in filing      an application  under Order  XXI Rule  99, CPC claiming      that his  dispossession was illegal and that possession      deserves to  be restored to him. If such an application      is allowed after adjudication then as enjoined by Order      XXI Rule  98 sub-rule  (1) CPC  the Executing Court can      direct the  stranger applicant  under Order XXI Rule 99      to be  put in  possession of  the property  of  if  his      application is  found to  be substanceless it has to be      dismissed. Such  an order passed by the Executing Court      disposing of the application one way or the other under      Order XXI  Rule 98 sub-rule (1) would be deemed to be a      decree as  laid down by Order XXI Rule 103 and would be      appealable before  appropriate appellate  forum. But no      separate suit  would lie against such orders as clearly      enjoined by Order XXI Rule 101.      In short  the aforesaid  statutory provisions  of Order XXI lay  down a  complete code  for resolving  all  disputes pertaining to execution of decree for possession obtained by a decree-holder  and whose  attempts at  executing the  said decree meet  with rough  weather. Once resistance is offered by a  purported stranger to the decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy  available to  the decree-holder  against such an obstructionist in  only under Order XXI Rule 97 sub-rule (1) and he  cannot bypass  such obstruction  and insist  on  re- issuance of  warrant for  possession under Order XXI Rule 35 with the  help of  police force, as that course would amount to bypassing and circumventing the procedure laid down under Order XXI  Rule 97 in connection with removal of obstruction of  purported   strangers  to   the  decree.  Once  such  an obstruction is  on the  record of  the Executing Court it is difficult to  appreciate how  the Executing  Court can  tell such obstructionist  that he  must first lose possession and then only  his remedy  is to move an application under Order XXI Rule 99, CPC and pray for restoration of possession. The High Court  by the impugned order and judgment has taken the view that  the only  remedy available  to a  stranger to the decree who  claims any  independent right, title or interest in the decretal property is to go by Order XXI Rule 99. This view of  the High Court on the aforesaid statutory scheme is

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clearly unsustainable.  It  is  easy  to  visualise  that  a stranger to  the decree  who claims  an  independent  right, title and  interest in  the decretal  property can offer his resistance before  getting  actually  dispossessed.  He  can equally agitate  his grievance and claim for adjudication of his independent  right, title  and interest  in the decretal property even  after losing possession as per Order XXI Rule 99. Order  XXI Rule  97 deals with a stage which is prior to the actual  execution of  the decree  for possession wherein the grievance  of the obstructionist can be adjudicated upon before actual  delivery of  possession to the decree-holder. While Order  XXI Rule  99 on  the other  hand deals with the subsequent  stage  in  the  execution  proceedings  where  a stranger claiming  any right,  title  and  interest  in  the decretal property  might have  got actually dispossessed and claims restoration  of possession  on  adjudication  of  his independent right, title and interest dehors the interest of the  judgment-debtor.  Both  these  types  of  enquiries  in connection with  the right, title and interest of a stranger to the  decree are  clearly contemplated  by  the  aforesaid scheme of Order XXI and it is not as if that such a stranger to the  decree can  come in  the picture  only at  the final stage after losing the possession and not before it if he is vigilant enough  to  raise  his  objection  and  obstruction before the  warrant for  possession gets  actually  executed against him. With respect the High Court has totally ignored the scheme of Order XXI Rule 97 in this connection by taking the view  that only  remedy of  such stranger  to the decree lies under  Order XXI  Rule 99 and he has no locus standi to get adjudication  of his  claim prior to the actual delivery of  possession   to  the   decree-holder  in  the  execution proceedings. The  view taken  by  the  High  Court  in  this connection also  results in  patent breach  of principles of natural justice  as the  obstructionist, who alleges to have any independent  right, title  and interest  in the decretal property and  who is  admittedly not  a party  to the decree even though  making a  grievance right  in time  before  the warrant for  execution is  actually executed,  would be told off the  gates and  his grievance would not be considered or heard or  merits and  he would be thrown off lock, stock and barrel by  use of  police force  by the  decree-holder. That would  obviously   result  in  irreparable  injury  to  such obstructionist whose  grievance would  go overboard  without being considered  on merits and such obstructionist would be condemned totally  unheard. Such  an order  of the Executing Court, therefore,  would fail  also on  the ground  of  non- compliance with  basic principles of natural justice. On the contrary the  statutory scheme  envisaged by  Order XXI Rule 97, CPC  as discussed  earlier clearly guards against such a pitfall and  provides a statutory remedy both to the decree- holder as  well as  to  the  obstructionist  to  have  their respective say  in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to  the hierarchy  of appeals  would remain  binding between the  parties to  such proceedings  and separate suit would be  barred with  a view to seeing that multiplicity of proceedings and  parallel proceedings  are avoided  and  the gamut laid down by Order XXI Rules 97 and 103 would remain a complete code  and the sole remedy for the concerned parties to have  their grievances  once and for all finally resolved in execution proceedings themselves.      In this  connection we  may also  profitably refer to a judgment of  a Bench  of three  learned of this Court in the case of  Bhanwar Lal  v. Satyanarain and Another (195) 1 SCC 6. In  that case  the Bench consisting of K. Ramaswamy, S.C.

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Agrawal,  and   N.  Venkatachala,   JJ.,   Satyanarain   had obstructed  to  the  delivery  of  possession  of  the  suit immovable property  which  was  sought  to  be  obtained  in execution by  the appellant  decree-holder.  After  such  an obstruction was  offered by  Satyanarain  the  decree-holder moved an  application under  Order XXI  Rule 35  for  police assistance to  remove obstruction caused by Satyanarain. The Executing  Court  directed  the  decree-holder  to  make  an application under  Order XXI  Rule 97.  This Court  took the view that  the very application under Order XXI Rule 35 sub- rule (3)  for police  assistance for  removal of obstruction caused by Satyanarain had to be treated to be an application under  Order  XXI  Rule  97  and  such  an  application  was maintainable and  could not be said to be beyond limitation. In this connection the following pertinent observations were made by this Court:      "The  crux   of  the   question  is      whether the  application  filed  on      25-5-1979 by  the appellant, though      purported to  be  under  Order  21.      Rule 35(3)  against Satyanarain, is      convertible to  one under Order 21,      Rule  97.   Order  21,  Rule  35(3)      provides that:      "35(3)  Where   possession  of  any      building  on  enclosure  is  to  be      delivered   and   the   person   in      possession,  being   bound  by  the      decree,  does   not   afford   free      access,  the   Court,  through  its      officers,   may,    after    giving      reasonable warning  and facility to      any woman  not appearing  in public      according to  the  customs  of  the      country to withdraw, remove or open      any lock  or bolt or break open any      door or  do any other act necessary      for putting  the  decree-holder  in      possession.’      A reading  of Order  21. Rule 35(3)      postulates  that   the  person   in      possession   of    the    immovable      property to  be delivered under the      decree must  be per  force bound by      the decree. Admittedly, Satyanarain      was not  a judgment-debtor and that      therefore, he  is not  bound by the      decree  unless   he  claims  right,      title  or   interest  through   the      judgment-debtor,  Ram  Kishan.  the      person   resisting    delivery   of      possession.  In   other  words  the      resistor must  claim derivate title      from the judgment-debtor. The court      gets power  under Order 21, Rule 97      to  remove   such  obstruction   or      resistance and  direct its  officer      to   put   the   decree-holder   in      possession   of    the    immovable      property after  conducting  enquiry      under Rule 97.      Order 21, Rule 97 provides thus:      ‘97. Resistance  or obstruction  to      possession of  immovable property.-      (1) Where  the holder  of a  decree

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    for  the  possession  of  immovable      property or  the purchaser  of  any      such property  sold in execution of      a decree  is resisted or obstructed      by   any    person   in   obtaining      possession of  the property, he may      make an  application to  the  Court      complaining of  such resistance  or      obstruction.      (2) Where  any application  is made      under sub-rule (1), the Court shall      proceed  to   adjudicate  upon  the      application in  accordance with the      provisions herein contained.’      The procedure  has been provided in      Rules 98  to 103.  We are  not,  at      present,   concerned    with    the      question relating  to the procedure      to be  followed and  question to be      determined under Order 21, Rules 98      to 102. A reading of Order 21, Rule      97 CPC  clearly envisages that "any      person"    even    including    the      judgment-debtor        irrespective      whether he  claims derivative title      from the  judgment-debtor or set up      his own  right, title  or  interest      dehors the  judgment-debtor and  he      resists execution of a decree, then      the court  in addition to the power      under Rule 35(3) has been empowered      to conduct  an enquiry  whether the      obstruction  by   that  person   in      obtaining possession  of  immovable      property  was  legal  or  not.  The      decree-holder gets  a  right  under      Rule  97  to  make  an  application      against third  parties to  have his      obstruction removed  and an enquiry      thereon   could   be   done.   Each      occasion    of    obstruction    or      resistance  furnishes  a  cause  of      action to the decree-holder to make      an application  for removal  of the      obstruction or  resistance by  such      person.      When the  appellant  had  made  the      application  on  25-5-1979  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.      In technical  ground the  executing      court    dismissed    the    second      application on  limitation and also      the  third   application,  on   the      ground of  res judicata  which  the      High Court has in the revisions now      upheld.  The   procedure   is   the

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    handmaid of substantive justice but      in  this  case  it  has  ruled  the      roost."      In  view  of  the  aforesaid  settled  legal  position, therefore,  and   in  the  light  of  the  statutory  scheme discussed by us earlier it must be held that respondent no.1 decree-holder’s application  dated 6th  May 1991 praying for issuance of  warrant for delivery of possession with the aid of armed  force, was in substance for removal of obstruction offered by the appellant and others under Order XXI Rule 97, CPC and  had to be adjudicated upon as enjoined by Order XXI Rule 97  sub-rule (2) read with Order XXI Rule 101 and Order XXI Rule 98. In this connection the Court had also to follow the procedure  laid down by Order XXI Rule 105 which enjoins the Executing  Court to  which an  application is made under any of  the foregoing  Rules of  the Order  to fix a date of hearing of  the application.  As the Executing Court refused to adjudicate  upon the  obstruction and  the claim  of  the appellant who obstructed to the execution proceedings it had clearly failed to exercise jurisdiction vested in it by law. The High  Court in revision also committed the same error by taking the view that such an application was not maintained. It is of course true as submitted by learned counsel for the decree-holder that  in paragraph  4 of  the  judgment  under appeal  the  High  Court  has  noted  that  there  was  some discrepancy about  the Khasra  Number. But these are passing observations. On  the contrary  in the subsequent paragraphs of the judgment the High Court has clearly held that such an application by  the objector  was not  maintainable and  his only remedy  was to move an application under Order XXI Rule 99  after  handing  over  possession  and  consideration  of objection to  delivery of  possession by  a stranger  to the decree  at   any  earlier  stage  was  premature.  It  must, therefore, be  held that neither the Executing Court nor the High Court  in revision  had considered the objection of the appellant against  execution  or  merits.  Consequently  the impugned judgment  of the High court as well as the order of the Executing  Court in  Civil Execution Case No. 25 of 1990 dated 15th  February 1996  are quashed  and  set  aside  and proceedings are  remanded to  the Court of Munsif II, Munger to re-decide  the application  of  respondent  no.1  decree- holder dated  6th May  1991 by  treating it  to be one under Order  XXI  Rule  97  for  removal  of  obstruction  of  the appellant and after hearing the decree-holder as well as the appellant to  adjudicate the  claim of  the appellant and to pass appropriate  orders under  Order XXI  Rule 97  sub-rule (2), CPC  read with  Order XXI  Rule 98, CPC as indicated in earlier part of this judgment.      Before parting  with  this  case  we  may  mention  one apprehension voiced  by learned  counsel appearing  for  the decree-holder. He  submitted that the Nazir has noted in his report dated  28th April  1991 that  when he went to execute the decree  he was  resisted on  spot by Brahmdeo Chaudhary, that is  the  present  appellant,  as  well  as  by  Sitaram Chaudhary and Jago Chaudhary who are found to be brothers of the appellant  and some  other persons and, therefore, these other persons  also would one by one come forward to further obstruct  the   execution   proceedings   which   would   be indefinitely delayed.  This submission  though  prima  facie looking attractive on a closer scrutiny does not remain well sustained. Even  though  the  Nazir’s  report  mentions  the obstructions offered  by Sitaram  Chaudhary, Jago Chaudhary, Brahmdeo Chaudhary  and others,  only the appellant objected to the  order passed  by the  Executing Court  on respondent no.1’s application  dated 6th  May 1991  for issuance  of  a

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fresh warrant  for delivery  of possession  with the  aid of police force.  Only he put forward his written objections on 22nd January  1996. Neither of his brothers, namely, Sitaram Chaudhary or  Jago  Chaudhary  nor  anyone  else  filed  any objections to  the said  application for  issuance of  fresh warrant for  possession with  the police  aid. Therefore, it must be  held that  the only  objectionist to  remain in the field claiming  to be a stranger having any right, title and interest in  the suit  property is  the appellant and no one else. The  others who  might have  resisted on  spot on 28th April  1991   must  be   treated  to  have  given  up  their obstructions and  resistance subsequently  and have gone out of picture.  It must,  therefore,  be  held  that  only  the appellant is  the sole  surviving obstructionist whose claim regarding the  alleged independent right, title and interest in the  decretal property  has to be adjudicated upon by the Executing Court  under Order  XXI Rule  97 sub-rule (2), CPC pursuant to the present order. The Executing Court shall not entertain objection  or obstruction  from any other party or person. It  is also necessary to direct the Executing Court, to which these proceedings are being remanded, to adjudicate upon the  claim of the appellant to the decretal property as per the  provisions of  Order XXI  Rule 97 sub-rule (2), CPC read with  Order XXI Rule 98 within a period of three months from the  receipt of the writ of the order at its end as the decree is of 1988 and the execution proceedings now would be pending for about nine years.      The appeal  is accordingly  allowed. There  will be  no order as  to costs  in the  facts and  circumstances of  the case.