1. The first respondent-decree-holder obtained an order of eviction on 23-2-1960 against the second respondent-judgment-debtor in HRC. No. 754 of 1960 on the file of the First Munsiff, Bangalore. This was confirmed in HRC. Appeal No. 69 of 1962 on the file of the District Judge, Bangalore on 24-11-1966. The revision petition filed against this by the second respondent was dismissed on 29-5-1967. An application for leave to appeal to the Supreme Court filed by the second respondent was also dismissed. The first petitioner is the father of the judgment-debtor and the second petitioner is the brother of the judgment-debtor. They have entered into a partnership under the partnership deed, marked Ext. D-1 dated 5-8-1955. The object of the partnership was to make suitable arrangements to establish the judgment-debtor and the second petitioner, who are the sons of the first petitioner, in business of exhibiting films and running a cinema at Narasimharaja Road, Bagalore City, under the name and style of ‘Naaz Cinema’. The petitioners filed OS. No. 153 of 1967 on 31-8-1967 for a declaration that the order of eviction made in HRC. No. 754 of 1960 was not binding on them, and, for a permanent injunction restraining the first respondent from enforcing the order of eviction. The petitioners also obtained an order of temporary injunction on the same day; this injunction order was vacated on 5-10-1967. The petitioners filed MA. No. 25 of 1967 on the file of the District Judge, Bangalore, against the order vacating the injunction order, and this was dismissed on 21-11-1967. The civil revision petition filed against this order by the petitioners was withdrawn. After the disposal of the civil revision petition and the application for leave to appeal to the Supreme Court, the first respondent-decree-holder sued out execution of the order of eviction. After the disposal of the miscellaneous appeal, the trial Court made an order on 8-12-1967 directing delivery of possession by 13-2-1968. The delivery warrant was issued on 12-12-1967. When the Amin went to effect delivery of possession, there was obstruction for delivery of possession. A report to this effect was made by the Amin on 18-12-1967 stating that the first petitioner produced the partnership deed before him and refused to vacate the premises and the warrant contains an endorsement of the decree-holder that the Court should direct delivery of possession with the assistance of the police. A mahazar regarding the obstruction was also submitted to the Court by the Amin. Thereafter, the decree-holder made an application on 18-12-1967, which is marked as IA. IV, praying that the Court may order delivery of possession with the help of the police and by breaking open the locks of the premises. An order was passed accordingly by the trial Court on 21-12-1967 noting that the obstruction is caused by the judgment-debtor who had failed in obtaining the order of injunction in OS. No. 153 of 1967. The petitioners filed IA. No. V on 22-12-1967 praying that the warrant of delivery of possession may be recalled for the reasons set out in the affidavit accompanying the said application. No warrant of delivery of possession appears to have been issued. In the meantime, objections were filed to IA. No. V opposing the petitioners' prayer. On the request of the petitioners, the application came to be posted for evidence. Evidence was adduced and a few documents were marked as exhibits. Certified copies of the orders passed in MA. No. 25 of 1967 and the order passed on IA. No. I in OS. No. 153 of 1967 were marked as Exts. P-2 and P-3. After hearing the arguments of parties, the trial Court passed an order on 20-1-1968 rejecting IA. No. V and directing execution to proceed. It is against this order, that the petitioners have come up with this revision petition.

2. It was contended by Sri G.R Ethirajulu Naidu, the learned Counsel for the petitioners, that in view of the obstruction caused by the petitioners for delivery of possession, the only remedy open to the decree-holder was to make an application under Or. 21, R. 97 CPC. Unless this is done, the Court is incompetent to investigate the merits of the rival contentions of the parties.

3. It was submitted that the decree-holder made the application for possession under Or. 21, R. 35 CPC. The order under execution could be given effect to and delivery be ordered only as against persons bound by the decree and who refuse to vacate the premises. It was contended that the petitioners became partners on 5-8-1955 and the order of eviction was passed on 23-2-1962; their interests as partners to be in possession of the property came into existence earlier; the decree-holder not having impleaded them as parties to the HRC. proceedings, they were not bound by the decree, and therefore, the decree-holder cannot avail himself of the provisions of Or. 21, R. 35 CPC. He therefore submitted that the only course open to the decree-holder was to make an application under Or. 21, R. 97 CPC., obtain orders under Or. 21, R. 98 CPC., if he succeeded in establishing that the resistance or obstruction was caused without any just cause by the petitioners at the instigation of the judgment-debtor. It was further submitted that the provisions of Or. 21, Rr. 97, 98 and 99 are inter-dependent and must be read as a whole. In support of the contentions, the learned Counsel for the petitioners cited a number of authorities. It appears to me that the provisions of Or. 21, Rr. 97, 98 and 99 are inter-dependent, is beyond question. Therefore, I need not refer to the several authorities cited in support of the above proposition. A decision in Pera Naidu v. Soundarvalli Ammal(1) was cited. The provisions considered in the said decision were Or. 21, Rr. 100 and 101 CPC. and the person who sought delivery of possession was a coparcener, who was wrongfully dispossessed. In view of the facts of the said case this decision does not help the petitioners. Strong reliance was placed by the petitioners Counsel on a decision in Ezra v. Gubbay(2) where the right of a sub-lessee to resist delivery of possession under a decree against the lessee was upheld. It was pointed by the respondents that this decision has been dissented later by the Calcutta High Court in Sheik Yusuf v. Jyotish(3), which has been approved by the Supreme Court in Gurusiddaswami v. DMD. Jain Sabha(4). The petitioners' Counsel also invited my attention to the observations made in United Bank of India Ltd. v. J.C Mitra(5) in the following terms:

“In my judgment thus, none of these cases lay down that when there is a dispute the execution court under Or. 21, R. 35 can determine the fact that the person is a sub-tenant or not and then hold that he is bound or otherwise by the decree……..the proper investigation can be done when the decree-holder proceeds under Or. 21, R. 97, CPC.”

4. Though I am unable to agree with the view that the question whether a party is bound by the decree cannot be investigated under Or. 21 R. 35 Civil Procedure Code, the facts and circumstances of the present case are such that the said observations are not of any assistance to the petitioner. It appears to me that a sub-lessee cannot resist a decree for eviction against the lessee, in view of the provisions of S. 18 of the House Rent and Accommodation Control Act 30 of 1951. Therefore, the questions that arise for consideration in this case are whether the Court can grant relief to the decree-holder, though he has not made an application under Or. 21, R. 97 CPC. and whether the obstruction caused by the petitioners was at the instance of the judgment-debtor.

5. Sri S. Rangaraj, the learned Counsel appearing for the first respondent, brings to my notice the last paragraph in the affidavit filed in support of IA. No. V. The petitioners pray for the re-calling of the warrant for delivery of possession and also for adjudication on their legitimate claim in the matter. The petitioners' Counsel states that though the petitioners in the last paragraph of their affidavit stated as above, the relief that they sought was only for re-calling the warrant of delivery issued in the case. It is pointed out that in paragraph 4 of the affidavit, the petitioners state that they are in possession of the premises on their own account and that they obstructed delivery of possession when the Amain came to execute the delivery warrant. They also state that in spite of the obstruction, the decree-holder instead of making an application under Or. 21, R. 97 CPC., complaining of resistance, has taken an order for delivery of possession by breaking open the lock. They submitted that unless their claims are adjudicated under the provisions of Or. 21, R. 99 CPC., no order for delivery of possession can be made. In view of this, the petitioners' Counsel contends that the lower Court should have directed the decree-holder to make an application under Or. 21, R. 97 CPC. and should not have proceeded to adjudicate on the right of the petitioners to offer resistance. There would have been much force in the argument of the petitioners' Counsel. If they had not invited the Court to investigate the merits of their right to offer obstruction. It is clear from the order sheet that the petitioners offered evidence in support of their claim and sought for an adjudication on the merits of their claim. The decree-holder filed his objections denying the claim of the petitioners and contended that they have no right to obstruct delivery of possession and they are offering obstruction at the instance of the judgment-debtor. The order of injunction passed in their favour in the suit filed by them for a declaration that the order of eviction is not binding upon them has been dissolved and therefore they are not competent to offer any obstruction. The respondents' Counsel submitted that in view of the tact that there has been an investigation at the instance of the petitioners and substantial justice has been done in the case, the petitioners are not entitled to contend in this Court that the tried Court should not have investigated the merits of their claim and adjudicate thereon. It appears to me that there is much force in this contention. In law, it is open to the decree-holder-first respondent, who has been obstructed to make another application for delivery of possession and make an application under Or. 21, R. 97 CPC. for removal of obstruction, if again obstruction is offered by any person. In a case in Savariyayi Gnanappu… v. Thiraviyam Pillai Subbiah Pillai….(6), it is observed that decree-holder has the right to make a fresh application for delivery of possession notwithstanding the obstruction in the first instance and every resistance or obstruction gives a fresh period of limitation from the time of that particular resistance or obstruction. In view of this position in law, it appears to me that it serves no purpose to interfere with the order of the trial Court on the ground that the trial Court should not have directed further execution without an application being made by the decree-holder under Or. 21, R. 97 CPC. Further, the petitioners having offered to adduce evidence and sought the adjudication on the merits of their claims, cannot now be allowed to contend that the adjudication should not have been made without an application under Or. 21, R. 97 CPC. by the decree-holder. The petitioners would not have had any grievance if the adjudication was in their favour. They cannot, therefore, make a grievance now as the adjudication has been against them. The trial Court has as a matter of fact found that the petitioners have obstructed delivery of possession not in their own right and that they are doing so only at the instance of the judgment-debtor and to see that the decree-holder does not get the fruit of his decree in the order passed in the HRC. proceedings against the judgment-debtor ‘who is their own kith and kin’. In this connection, Sri Rangaraj invited my attention to a decision in Motamari Ramiah v. Kumari Malliah(7). In this case, the petitioners were the decree-holders, third respondent was the sole judgment-debtor and respondents 1 and 2 who were not parties to the decree filed an objection petition purporting to be under Or. 21, R. 97 CPC. It is observed in paragraph 10 of the decision as follows:

“All the same, from the very wording of Or. 21, R. 97 CPC., the Rule contemplates the petition being filed by the decree-holder ‘complaining of resistance or of obstruction’ and not by a third party. In this case, the fact remains that respondents 1 and 2 who were third parties to the decree filed an objection petition, that there was an enquiry on it and that an order has been passed. The question is as to what has to be done now regarding the order in particular, and whether it has to be set aside as prayed for by the learned Counsel for the decree-holders.”

6. In paragraph 15, it is further observed as follows:

“The result of the foregoing discussion may be summarised thus: Under Or. 21, R. 97 CPC. only the decree-holder can file an application to the Court complaining of resistance or obstruction which can result in an investigation by the Court and suitable orders. An obstructor, who is not a party to the decree under execution cannot approach the Court with an application to determine and safeguard his rights or to obtain an order in his favour under Or. 21, R. 97 CPC. or any other provision of law. If a third party files such an application, impleading the decree-holder it would be open to the decree-holder to contend that such an application does not lie, that the third party cannot ask for an enquiry in the matter of relief and to ask for an order in favour of himself (decree-holder). If he so contends, the application would have to be dismissed.

But, if instead of raising such an objection he files a counter and takes part in the proceedings and if an order is passed in the proceedings, the latter would be valid just as if the counter which he filed was an application filed by him under Or. 21, R. 97 CPC. and as if the application which had been filed by the third party had been a counter filed by such third party…………….”

7. Applying these observations, with which I respectfully agree, to the facts of this case, the objections filed by the decree-holder to IA. No. V, should be treated as an application made under Or. 21, R. 97 CPC., and the order made by the Court as one made under Or. 21, R. 99. It is pertinent to refer to what was pointed out by the learned Counsel for the respondent that IA. No. V itself was filed under the provisions of S. 115 read with Or. 21, R. 99 CPC., and the petitioners' application could be treated as an objection to the decree-holder's application for removal of obstruction and for delivery of possession with police help and by breaking open the lock of the premises. The petitioners having invited the Court and having cooperated with the Court in adjudicating upon their right, cannot turn back and say that the Court had no jurisdiction to do so. In this connection, a further observation in the above said decision M. Ramiah v. K. Malliah also supports the view I have expressed above. It is as follows:

“……A decree-holder who has so co-operated, without raising any objection probably in the hope that the proceedings would end in his favour and against the third party, cannot be allowed or encouraged to attack the order passed in such proceedings, if and when he finds that the order is not to his advantage or to his taste or up to his expectation.”

8. In this case, though in paragraph 4 of the affidavit filed in support of IA. No. V, the petitioners state that the decree-holder's remedy is by way of an application under Or. 21, R. 97 CPC. they fully co-operate with the Court in adjudicating on their rights, by adducing evidence, producing documents and seeking the Court to give a decision on the merits of their claim. The position in regard to the facts in the reported case cited above is reverse to the facts of this case. The observations with reference to the decree-holders in the said case, applies here to the petitioners in this case. Further what is more important is that substantial justice has been done in the case and the petitioners cannot have any legitimate grievance. As mentioned already, the first petitioner is no other than the father of the judgment-debtor and the second petitioner is the brother. There is absolutely no evidence in this case to indicate that the decree-holder recognised the partnership as a tenant. The judgment-debtor continued to be the tenant, the relationship between the decree-holder and the judgment-debtor as that of a landlord and a tenant did not change at any time. It may be that sometimes the petitioners have paid the rent from out of the partnership, but it does not indicate that the decree-holder recognised the petitioners as some of the tenants. In the circumstances of this case, I have no reason to differ from the view taken by the lower Court, that the resistance offered by the petitioners was not in their own right, but was at the instance of the judgment-debtor and with a view to protract and delay the proceedings, if not defeat the claim of the decree-holder.

9. For the reasons stated above, there is no substance in this revision petition and it is dismissed with costs. Advocate's fee Rs. 200.