S.S. Byas, J.
1. This civil second appeal of the obstructors is directed against an order of the Additional Civil Judge, Ajmer dt. Jan 5, 1983, by which their appeal was dismissed and the order of Munsif, Ajmer City, Ajmer dt. Feb 25, 1978 passed in a proceeding under Order 21, Rule 97 of the Civil P.C. was upheld.
2. Very few facts need narration for the disposal of this appeal. Smt. Kalan Bai (respondent 1) instituted a suit for rent and eviction against the other respondent Khem Chand. The suit was decreed ex parte in her favour. She applied for the execution of decree and prayed for the issue of a warrant of delivery of possession of the property in dispute to her. The Court of Munsif issued the warrant for the delivery of possession and the bailiff went on the spot for this purpose on Feb. 10, 1974. The appellants were found in possession of the property and they refused to deliver the possession to the decree-holder. They, thus, caused the obstruction in the' execution of decree and resisted the delivery of possession on Feb. 10, 1974. The decree-holder again applied for a fresh writ for the delivery of possession under Order 21, Rule 35, .C. P. C. When the bailiff went on the spot on July 12, 1975, the appellants again resisted the execution of decree and refused to deliver the possession of the property to the decree-holder. The warrant of delivery of possession thus remained unexecuted. The decree-holder thereupon submitted an application under Order 21 Rule 97, C.P.C. on Aug. 11, 1975, complaining the resistance and praying for the removal of the obstruction caused by the appellants. The learned Munsif initiated an enquiry and issued notices to the appellants. The defence taken by the appellants was that they were not bound by the decree; their possession over the property in dispute was an old one and that the application of the decree-holder filed on Aug. 11, 1975 was time-barred. It was contended that the first resistance by them took place on Feb. 10, 1974. The application under Order 21, Rule 97, C.P.C. should have been filed within 30 days from Feb. 10, 1974. The successive obstruction caused by them on July 12, 1975 did not give rise to any fresh cause of action. The application of the decree-holder under Order 21, Rule 97, C.P.C. was thus time barred. The learned Munsif, after holding an enquiry, recorded his finding as under : --
1) the appellants were the sub-tenants of the judgment-debtor Khemchand and the resistance offered by them was without just cause; and
2) the application filed by the decree-holder under Order 21, Rule 97, C.P.C. was not time barred, it was within limitation.
3. The cause of action for preferring an application under Order 21, Rule 97, C.P.C. accrued also on July 12, 1975 when the second resistance was made. The application could not be said to be time barred because of the obstruction caused by the obstructors (appellants) earlier also on Feb. 10, 1974. According to the learned Munsif, every successive resistance offered by the appellants gave a fresh cause of action to the decree-holder. He, therefore, allowed the decree-holder's application and directed that the possession of the property in dispute be delivered to the decree-holder by removing the obstruction caused by the appellants. Aggrieved against the said order, the appellants went in appeal, which was heard and decided by the learned Additional Civil Judge. The same contentions, which were placed before the learned Munsif, were reagitated in appeal. The learned Additional Civil Judge found no force in the contentions of the appellants. He concurred with the view taken by the Munsif. The appeal was consequently dismissed. They have now come up in second appeal.
4. The following substantial questions of law were formulated while admitting the appeal : --
1) Whether the period of limitation for an application under Order 21, Rule 97, C.P.C. for directing to deliver possession in the case of resistances of obstruction could commence from the date of first resistance or from subsequent resistance?
2) Whether the decree dt. 27-9-72 can be executed against the appellants, even if it may be assumed for the sake of argument though not admitting the same that the appellants were the sub-tenants inasmuch as it was a nullity since it did not satisfy any of the grounds under Section 13(i) of the Act?
5. I have heard the learned counsel for the parties. I shall take up the second question to start with. It was vehemently contended by the learned counsel appearing for the appellants that even if they are assumed to be the sub-tenants of the judgment-debtor Khemchand for the sake of argument, the decree cannot be executed against them because it was invalid in law. It was argued that the decree is a nullity since it did not satisfy any of the grounds of eviction envisaged under Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). It was argued that the decree was passed ex parte. It was a result of unholy union and collusion between the decree-holder and the judgment-debtor. Since the decree of eviction was not passed on any of the grounds enumerated in Section 13 of the Act, it was a nullity and as such it should not be executed. I have given my thoughtful consideration to the contention and find it absolutely bereft of force for two apparent reasons.
6. The first reason is that no objection assailing the validity of the decree that it was not passed on any of the grounds mentioned in Section 13 of the Act was taken in both the courts below. It was incumbent on the appellants to raise this objection relating to the nullity of decree before the learned Munsif. He would have then decided the matter by looking into the pleadings and evidence of the parties in the suit. The objection now raised is not a pure question of law. It is at least a mixed question of fact and law, which cannot be permitted to be raised for the first time in the appeal. Since the objection relating to the decree being a nullity was not raised by the appellants in the two courts below, no such objection can be allowed to be raised now.
7. The second reason is that according to the findings of both the courts below, the appellants are the sub-tenants of Khemchand, who was a tenant-in-chief of the decree-holder. This concurrent finding of the fact cannot be disturbed in appeal, specially when there are no good and valid reasons to disturb that finding. Since the appellants have been taken as sub-tenants of the tenant-in-chief Khemchand by both the courts below, they are not entitled to assail the validity of the decree on the ground that no grounds for eviction existed, as enumerated in Section 13 of the Act. The sub-tenants, unless there is a privity of contract between them and the landlord, have no locus standi to challenge the decree of eviction passed against the tenant-in-chief. A similar situation arose in Rupchand v. Raghuwanshi, AIR 1964 SC 1889. It was observed by their Lordships : --
'Where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee, but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. The mere fact that the defendant agrees with the plaintiff that if a suit is brought he would not defend it would not necessarily prove collusion.'
8. In the instant case, the decree of eviction was passed ex parte against the tenant-in-chief Khemchand. A decree passed ex parte is as effective and valid and binding as that passed in a contested suit. The appellants, when their position is taken to be of sub-tenants, are bound by this decree of eviction passed against a tenant-in-chief. They, therefore, cannot resist or obstruct the execution of the decree. If the resistance or obstruction is offered by them, it can be said without any hitch that such resistance or obstruction was made without any just cause by them. The first contention, thus, has no force and fails.
9. Coming to the second contention, it has been made the main and principal ground of shelter by the appellants that the application filed by the decree-holder under Order 21, Rule 97, C.P.C. complaining the resistance or obstructions caused by them is time barred. It was argued that the first resistance or obstruction was caused by them admittedly on Feb. 10, 1974. The decree-holder then made no complaint against them under Order 21, Rule 97, C.P.C. The decree-holder remained silent and applied for a fresh writ for delivery of possession. When the bailiff came to effect the delivery of possession; they again caused resistance or obstruction on July 12, 1975. The application was filed on Aug. 11, 1975. The resistance or obstruction was not new. It was a successive resistance and obstruction in line with that they offered earlier on Feb. 10, 1974. The cause of action for an application under Order 21, Rule 97, C.P.C., therefore, accrued to the decree-holder on Feb. 10, 1974. The second or the successive resistance offered by the same obstructers does not give rise to a fresh cause of action for an application under Order 21, Rule 97, C.P.C. Reliance in support of the contention was placed on Mukund Bapu v. Tanu Sakku Panwar, AIR 1933 Bom 457 (FB) and Smt. Madora Bibi v. Mohammed Mateen, AIR 1980 All 206.
10. It was on the other hand contended by Mr. R.M. Lodha learned counsel appearing for the decree-holder that the starting point of limitation for an application under Order 21, Rule 97, C.P.C. is the date of the resistance or obstruction which is complained of. It is for the decree-holder to ignore the earlier resistance and may obtain a fresh warrant for the delivery of the possession. If he is resisted or obstructed, whether by the same obstructors or fresh obstructors, the starting point for limitation would be the date of resistance which is complained of. Reliance in support of the contention was placed on numerous authorities viz. Meyappa Chetty v. Meyappan Servai, AIR 1921 Mad 559, Kotumal Khemchand v. Gur Ashram, AIR 1947 Sind 118, Savariyayl Gnanappu v. Thiraviyam Pillai Subhiah Pillah, AIR 1957 Trav Co. 287, P.B. Pathak Sharma v. Smt. Renuka Debi, AIR 1959 Cal 613, Maneklal Nathalal Jingar v. Ochhavalal Chagan Lal, AIR 1970 Guj 49 and Parameswaran v. Kumara Pillai Raghuvan Pillai, AIR 1981 Ker 29.
11. The sale and pertinent question which emerges for determination is as to what should be the starting point of limitation under Article 129 of the Limitation Act for an application filed for removal of the obstruction under Order 21, Rule 97, C.P.C. There is no pronouncement of our High Court on the point. It is obvious from the various authorities relied upon by the learned counsel appearing for the parties that there is a fairly sharp cleavage of judicial opinion on this question. One view is that the proceedings under Order 21, Rule 97, C.P.C. must be commenced within 30 days of the first resistance and not of the successive or last resistance, specially when the resisters are the same persons. The successive obstruction does not give rise to a fresh cause of action for the purpose of the applicability of Article 129 of the Limitation Act. This is the view propounded by the High Courts of Allahabad and Bombay in the authorities cited supra. The other view is that it is the resistance or obstruction complained of in an application under Order 21, Rule 97, C.P.C. which is material to decide the starting point of limitation under Article 129 of the Limitation Act. If there is fresh or repeated obstruction, it is the day of such repeated or successive obstruction which should alone be taken into consideration and not the date and day of the earlier obstruction. The decree-holder comes with the complaint against a particular resistance and the date of that particular resistance alone is material. The High Courts sharing this view are those of Madras, Sindh, Calcutta, Travancore Cochin, Gujarat and Kerala.
12. Now, a decree for the delivery of the possession over immovable property is to be executed in accordance with the provisions of Order 21, Rule 97, C.P.C. The decree-holder for getting the possession has got a right to obtain a warrant of possession. This right is available to him so long the decree subsists and is alive for execution and is not otherwise barred under any other law. It is true that Order 21, Rule 97, C.P.C. provides that if the execution is obstructed, the decree-holder can, by an application, complain of such obstruction. Rule 97, C.P.C. is, however, permissible. The decree-holder is not bound to resort to the remedy under Rule 97, C.P.C. He may apply for a fresh writ of possession under Order 21, Rule 35, C.P.C. The law does not compel a decree-holder to complain against the resistance or obstruction as soon as it is made. He can ignore the resistance or obstruction and may, in his wisdom, apply for a fresh warrant of possession. It is, of course, upon him to move the court under Order 21, Rule 97, C.P.C. The choice lies with him. If he obtains a fresh writ of possession and is again obstructed by the same person, he can move an application under Order 21, Rule 97, C.P.C. for the removal of such obstruction caused on the second or successive occasion. His application cannot be held to be time barred if it is filed within 30 days of the second or successive resistance which is complained of. It is not open to the obstructor, which is a wrong-doer, may he be the same person who offered resistance or obstruction earlier, (to contend) that the application is time barred as it has been filed beyond 30 days of the earlier obstruction. It is the obstruction complained of in an application under Order 21, Rule 97, C.P.C. which should alone be taken into consideration and not the earlier-resistance for the purpose of computing the period of limitation under Article 129 of the Limitation Act. If a right to get a fresh writ of possession under Order 21, Rule 35, C.P.C. is indefeasible, the decree-holder can well ignore the resistance or obstruction and may try again for delivery of possession. Thus, the position, according to me, is that the decree-holder is entitled to take-out any number of warrants of possession so long as his execution application is not barred. Each obstruction made in execution of such warrants provides a fresh cause of action for filing an application under Order 21, Rule 97, C.P.C.
13. I am, therefore, unable to find myself in agreement with the view taken by the High Courts of Allahabad and Bombay, and share the majority view enunciated by the High Courts of Madras, Sindh, Calcutta, Travancore Cochin, Gujarat and Kerala.
14. Admittedly, in the instant case the second resistance was made on July 12, 1975 and the application for removal of obstruction under Order 21, Rule 97, C.P.C., was filed on Aug. 11, 1975. The application is, therefore, perfectly within the prescribed period of limitation under Article 129 of the Limitation Act. The contention of the learned counsel appearing for the appellants that the application is time barred, has no merit.
15. No other question survives for consideration.
16. For the reasons mentioned above, I find no force in this appeal. The appeal is, consequently, dismissed with costs.