R.A. Jahagirdar, J.
1. One Gajanan Gadekar was the original owner of a property bearing No. 1030 and situated at Old Modikhana, Pune No. 1. One Antoni Nicolas was the tenant in the suit property. Suit No. 2004 of 1970 was filed by the said Gadekar against the tenant for possession of the premises tenanted by the latter on several grounds. That suit was dismissed on 15th December, 1971 in so far as it related to possession. Thereafter the said Gadekar preferred an appeal, being Civil Appeal No. 206 of 1972, which was allowed by the Appeal Court of Pune by its judgment and order dated 7th October, 1972. Against the decision of the Appeal Court, the tenant preferred a petition, being Special Civil Application No. 290 of 1973, to this Court. During the pendency of this petition in this Court both Gadekar and Antoni expired and their legal representatives were brought on record. Ultimately the writ petition was dismissed by this Court on 12th February, 1979.
2. In the meantime, a darkhast application, being Regular Darkhast No. 185 of 1973, was made for the execution of the decree which had been passed by the Appeal Court in Civil Appeal No. 206 of 1972. However, the execution was stayed pending the disposal of the writ petition by this Court. Thereafter the decree was sought to be executed and it has been mentioned that on 21st July, 1979 the bailiff has reported that there was obstruction by the women folk and, therefore, he required the assistance of a lady police constable. It has also been mentioned that the 6th respondent in this petition has filed an application at Exh. 17 in the darkhast proceedings contending that execution proceedings cannot be taken against him because he was in possession of the premises. It is admitted before me and it has not been shown to the courts below to be otherwise that after this application at Exh. 17 was filed by the 6th respondent in this petition another application under Order 21, Rule 97 was filed by the petitioner who are the legal representatives of Gadekar and, therefore, the present decree-holders.
3. Respondent No. 6 himself filed a suit, being Suit No. 1703 of 1979, in the Court of Small Causes at Pune, for a declaration that he is the tenant of the premises, being one of the legal representatives of the deceased Antoni, and having not been impleaded in the earlier proceedings after the death of Antoni. In that suit he had filed an application for ad interim injunction which was granted by the trial Court but after hearing the parties that ad interim injunction was vacated by its judgment and order dated 8th October, 1979. In the appeal preferred by the 6th respondent, being Misc. Appeal No. 317 of 1979, the Appeal Court reversed this order of the trial Court and directed issue of interim injunction till the disposal of the suit by its judgment and order dated 9th February, 1981. It has not been shown that this order was subsequently challenged in this Court. That is, however, not material for the disposal of the question of law and jurisdiction which hasbeen neatly raised before me by Mr. Wagh, the learned Advocate appearing for the petitioners, in the circumstances to be mentioned hereinafter.
4. In the suit which has thus been filed by the 6th respondent the petitioners, who are decree-holders, filed an application at Exh. 41 contending that the suit is not maintainable on account of the provisions contained in Order 21, Rule 101 of the Code of Civil Procedure. According to the petitioners, all questions arising between the parties in an application under Rule 97 or Rule 99 of the Code must be decided under Rule 101 of Order 21 and cannot be agitated by a separate suit. The learned trial Judge has given several reasons for rejecting this application at Exh. 41. He wassomewhat impressed by the fact that the learned Joint Judge while deciding Civil Appeal No. 317 of 1973 could have as well decided this question of jurisdiction and since he did not hold in favour of the petitioners it must be assumed that the learned Joint Judge took the view that the Civil Court had jurisdiction. Mr. Wagh was fully-justified in complaining against this view taken by the learned trial Judge. It does not seem to have been argued at all in the proceedings relating to the interim injunction the question of jurisdiction. Therefore, it is open to Mr. Wagh to contend despite the order of the learned Joint Judge in Civil Appeal No. 317 of the 1979 that the Court of Small Causes had no jurisdiction to entertain the suit filed by the 6th respondent.
5. Mr. Wagh, after giving a detailed history of the litigation and after mentioning the facts of which I have taken note above, mentioned that a dispute has arisen in terms of Order 21, Rule 97 of the Code as a result of the filing of Exh. 17 by the 6th respondent in the darkhast proceedings andthis dispute can be decided by the executing Court and cannot be left open to be decided by the Civil Court in a separate suit. I have with the assistance of Mr. Wagh, gone through the relevant provisions of the Code of Civil Procedure and find myself unable on the facts and circumstances of this case to agree with his contention. Order 21, Rule 97 provides for a case where there is resistance or obstruction of any person to the execution of a decree and the decree-holder himself makes an application for the removal of such resistance or obstruction. If this is done then that question has to be decided under Order 21, Rule 101 of the Code of Civil Procedure. The question is whether in the instant case there is such an application made by the decree holders against the 6th respondent under Order 21, Rule 97 of the Code. From the facts which I have mentioned above the answer is necessarily in the negative. If that is so, the provisions of Rule 101 are not attracted at all. If, however, the petitioners had after the 6th respondent made an application at Exh. 17 preferred an application under Order 21, Rule 97 complaining of the resistance or obstruction made by the 6th respondent, the provisions of Order 21, Rule 101 would necessarily have been attracted and the contention of Mr. Wagh would have been unhesitatingly upheld by me.
6. The reliance placed by Mr. Wagh on a judgment of a Division Bench of Madhya Pradesh High Court in Bhagwat Narayan Dwivedi v. Kasturi d/o Ramdayal, : AIR1974MP26 , is, in my opinion, not justified. After reading the provisions of Order 21, Rule 97 onwards as they stood before the amendment of 1976 the Madhya Pradesh High Court held that Order 21, Rule 97 provided for cases where there is resistance or obstruction by a third person and proceeds to say that an application can be made by the decree holder complaining of such resistance or of suchobstruction. It, however, proceeds to mention that a third party may intimate the Court that he is intending to resist the execution application that is being filed. When this is done, a party executing the decree is entitled to make an application under Order 21, Rule 99 without waiting for physical obstruction by the person who had intimated to the Court as mentioned above. It does not say, as Mr. Wagh thinks that it says, that when an intimation of obstruction is given it should be treated as if a dispute has already arisen under Order 21, Rule 97 of the Code and it be held that there is an obstruction to an application made under that provision. I am unable to read such a meaning into the judgment of the Division Bench. On a proper analysis of the relevant provisions it seems to me that the bar envisaged under Order 21, Rule 101 does not come into operation in thiscase. The suit, therefore, cannot be thrown out on the threshold itself.
7. There is considerable justification in the indignation displayed by Mr. Wagh against he 6th respondent who has come into picture after the death of his father Antoni Nicolas, the original defendant. There is also considerable justification in his complaint that the 6th respondent hasoccupied the premises in respect of which decree has been passed earlier in 1972. Despite this, however, it is not possible for me to throw out the suit on the threshold. In view of the fact, however, that the decree which is being resisted by the suit is somewhat old one. I am sure, if an application is made to the Court of first instance for expediting the same it will be considered with sympathy.
8. In the result, this petition must fail. Rule is accordingly discharged.