V.S. Deshpande, C.J.
1. One Kashinath Ingale, the ancestor of respondent No. 1, herein instituted Reg. Civil Suit No. 419 of 1967 for possession of the house property. The house property bears Municipal Committee No. 1412 of CTS No. 1592 of Ahmednagar. Fakira Mahadu and four others were the defendants in the said suit. According to the plaintiff Kashinath, Fakira was his tenant and defendant No. 2 was unlawful sub-tenant of defendant No. 1 Fakira. Other defendant Nos. 3 to 5 were impleaded to avoid possible obstructions from them. This suit was decreed on 5-12-1969. The appeal of the defendant Nos. 1 to 4 against the same No. 30 of 1970 was dismissed with costs on 28-6-1972. Kashinath died in the meanwhile and his heirs the respondents Nos. 1-A to 1-F initiated Darkhast Proceedings No. 220 of 1972. Baburao Yallappa, the father of the defendant Nos. 3 to 4 in the original suit No. 419 of 1967 instituted Reg. Civil Suit No. 529 of 1972 for declaration of their ownership of the same house. He claimed to have purchased the house from one Mir. Karimoddin Ajmoddin Kavjang, the petitioner before me. The said suit was dismissed on 8-12-1976 and his appeal was dismissed on 14-6-1978. In that suit, the present petitioner had deposed on oath that he had sold his property by registered sale deed to the said Baburao Yallappa on 8-12-1969.
2. The present respondents Nos. 1-A to 1-F thereupon instituted Darkhast No. 250 of 1977 for possession of the suit property in execution of the decree on 8-9-1977. Warrant were ordered to be issued on the very same day under Order 21, Rule 35 of the Civil Procedure Code. The same could not be executed due to the obstruction presumably by the petitioner. Even, before the decree-holder could take out notice for removal of the obstruction the petitioner himself filed an application (Ex. 21) on 20-3-1977 for obstruction the execution of the decree against him, he being in possession and not being a part to the said decree. He claimed title of the property to himself and claimed possession thereof even before the Suit No. 419 of 1967 was filed. He appears to have by that time initiated a separate Suit No. 596 of 1977 on the strength of his title in respect of the suit property.
3. The heirs of the decree-holders contested the claim of the petitioner in Exh. 21. The statement of oath made by the present petitioner in Suit No. 529 of 1972 filed by Baburao Yallappa was also brought to the notice of the Court.
4. The Executing Court made elaborate enquiries and passed an exhaustive order on 29-10-1979. It held that obstruction of the present petitioner in the execution of the decree was un-merited and application Exh. 21 was liable to be rejected. The possession was ordered to be given to the decree-holder i.e. respondent No. 1-A to 1-F. The petitioner preferred an appeal. The Assistant District Judge allowed the appeal on the sole ground that application (Exh. 21) was not maintainable. The decree-holder had in the mean while filed an application Exh. 28 for removal of obstruction on 23-3-1977. The Assistant Judge directed investigation and adjudication on the merits the application (Exh. 28).
5. On remand, the learned Executing Court upheld the claim of the decree-holders and directed issuance of warrant holding that obstruction possession raised by present petitioner was un-merited. Unfortunately the Executing Court does not appear to have held a fresh investigation or no afresh evidence was led before him. He relied on the earlier evidence of the trial Judge record in proceedings at Exh. 21.
6. Against this order of the Executing Court dated 29-11-1980, the petitioner preferred an appeal. The appeal was dismissed on 12-1-81. The Appellate Court held that amended C.P. Code has come into existence on 1-2-1977. Under the said amended provisions no appeal competent against the order passed under Order 21, Rules 97, 98 of the C.P. Code. It is on this ground that petitioner's appeal was dismissed on 12-1-1981.
7. The main question that falls for consideration is whether order passed by the Executing Court on 29-11-1980 under Order 21, Rule 97 on the decree holder's application (Exh. 28) is indeed appealable or not. The answer must depend on the scheme of the amended provisions. It is not disputed that section 97(2)(q) of the amended Act is the relevant provision having hearing on the question. Section 97(2)(q) reads as follows :
Section 97(2).---Notwithstanding that the provisions of this Act have come into force or the repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1897),
(q)---the provisions of Rules 31, 32, 48-A, 57 to 59, 90 and 97 to 103 or Order XXI of the First Schedule as amended or, as the case may be substituted or inserted by section 72 of this Act shall not apply to or affect---
(i) any attachment subsisting immediately before the commencement of the said section 72 or
(ii) any suit instituted before such commencement under Rule 63 aforesaid to establish right to attached property or under Rule 103 aforesaid to establish possession, or
(iii) any proceeding to set aside the sale any immovable property and every such attachment, suit or proceeding shall be continued as if the said section 72 had come into force;
None of the contingencies contemplated in sub-clause (i) to (iii) of Clause (q) of sub-section 2 of section 97 arises in the present case. The result will be that the relevant amended provisions of Order 21, 97 and section 72 will at once apply to the proceedings in this case. All questions arising on such application made under Order 21, Rule 97 are liable to be adjudicated under Rule 101 and possession is required to be given accordingly under Rule 98. The said orders are as good as decree under the force of section 103. Obviously, the orders passed are liable to be appealed. Admittedly, no suit as contemplated under Rule 103 was pending on the date of commencement namely, February 1976. The question of application of Rule 104 of Order 21 will not apply. In this view of the matter, the view of the Appellate Court that order was not appealable is obviously wrong. The Assistant Judge, no doubt, relied on the judgment in case of State wakf Board v. Ebrahim Saheb, 1979 Madras Law Journal, P. 325. It appears that section 97 of the C.P.C. of amendment Act was not brought to the notice of the learned Judge in the said Ebrahim's case. Unfortunately, the full text of the said judgment is not available. The text does not show that section 97 of the amendment Act was brought to his notice. That is why Mr. Agarwal drew my attention to an other judgment of this Court delivered by Pratap, J., in the case of Sonia Dagdu v. Nanhu Dagdu, : AIR1980Bom62 . The said judgment is also not directly relevant. Suffice it to note that the provisions of the new enactment will apply unless expressly saved by section 97(1). In this view of the matter, appeal before the Assistant Judge cannot be said to be not maintainable.
8. I, however, find that the Executing Court had not recorded the evidence afresh though in their order of remand by the Assistant Judge dated 1-8-1980 he was so required to do. It may not be regular for the Executing Court to rely on the evidence recorded in application which was found by the Assistant Judge to be not maintainable. The case, therefore, shall have to be remanded back to the Executing Court to record the evidence afresh on Exh. 28 and dispose of the same accordingly.
9. Mr. Sali contends that obstruction of the present petitioner in the execution of the decree is baseless. That, no doubt, appears to be prima facie, so if one takes into account the trend of the previous litigation. It is, indeed unfortunate that the heirs of the original decree-holders could still not get possession of the property though the suit was instituted in 1967 and though the sons of Baburao were parties to the said suit to whom the petitioner has attempted to sell the property under registered sale deed in 1969. The claim of Baburao on the basis of such sale deed dated 8-1-1969 itself has rejected in his suit and also his appeal. That the petitioner could have succeeded in resisting the said execution of the decree by several methods, no doubt, prima facie is a sad reflection on our system of adjudication. The Executing Court failed to follow the order of the Appellate Court. In have no other go but to remand the matter for disposal to the Executing Court. In view of the long pendency of this dispute, the Executing Court is directed to dispose of the matter giving the same a top priority, unless earlier execution petition prior to 1977 are actually pending in his Court. Costs to abide the result. Rule made absolute accordingly.
Rule made absolute accordingly.