1994 (10) TMI 336

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....cution application under Order 21 Rule 35(3) of the CPC, for short the CPC, on May 24, 1979. 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 remove the obstruction caused by Satyanarain. The Court directed the appellant to make an application under Order 21, Rule 97 pursuant to which the appellant made second application on July 18, 1979 under Order 21 Rule 97 CPC for removal of obstruction caused by Satyanarain. The District Munsif, Executing Court, on January 12, 1981, dismissed that application as being barred by limitation under Article 129 of the Schedule to th....

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....rson 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, Ramkrishan. The person resisting delivery of possession must be bound by the decree for 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 obstr....

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....or removal of the obstruction or resistance by such person. 5. 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 res judicata which the High Court has in the revisions now upheld. The procedure is the handmaid of substantive justice but in this case it has rule the roo....