THE HON’BLE SRI JUSTICE K.C.BHANU CITY CIVIL COURT APPEAL No. 219 of 2010 JUDGMENT : 1. At the request of both the counsel, the appeal has been taken up for disposal as it involved a short question of law. 2. This appeal has been preferred challenging the order dated 10.11.2010 in EA (SR) No.6037 of 2010 in E.P. No.71 of 2007 in O.S. No.682 of 1982 on the file of the V Senior Civil Judge, City Civil Court, Hydeabad. 3. The brief facts are, the petitioner claims that his father J.Narayana was the tenant in respect of the premises bearing No.15-9-261 and a tin shed of the said premises, consisting of ground and first floor situated at Gowliguda Chaman, Hyderabad, having obtained the same on lease from its owner Krishna Murthy about 65 years back; that the said Krishna Murthy alienated the said property to one Shabbir Hussain and the tenancy was attorned; that, the said Shabbir Hussain alienated the schedule property to one G.Kishan Rao and the tenancy was attorned thereafter; that, after death of his father, the petitioner continued business in the schedule premises, and that, when the respondents/decree holders tried to evict the petitioner, he filed the petition under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) to declare his right as a tenant. Vide impugned order, that petition was dismissed on two grounds, viz. firstly that the tenant is not claiming any independent right, but he is claiming right through the judgment debtor; and secondly that no material is filed to show that the claim petitioner is tenant in respect of the schedule property. Challenging the same, the present revision is filed. 4. The short point that arises for consideration in this appeal is whether the third party who claims to be in possession of a property claiming independent right as a tenant not a party to a decree under execution could resist such decree by seeking adjudication of his objections under Order XXI Rule 97 CPC ? 5. According to the learned counsel for the appellant, since the appellant/claimant is claiming right as tenant, application under Order XXI Rule 97 CPC is maintainable and that has to be adjudicated, but without giving any opportunity, rejecting his claim at threshold is unsustainable, and therefore, he prays to set aside the impugned order. 6. On the other hand, the learned counsel for the respondents vehemently contended that the appellant is not claiming any independent right over the property, but he is claiming a right through the judgment debtor, and so, his claim need not be adjudicated in an application under Order XXI Rule 97 CPC; that, no material is filed to show that the appellant is a tenant in respect of the premises in question and hence, he prays to dismiss the revision. 7. The factual matrix is not in dispute. The appellant claims to be tenant in respect of the premises in question. Now, it has to be seen whether a tenant can file an objection petition under Order XXI Rule 97 CPC. 8. Order XXI Rule 97 CPC reads thus: “Resistance or obstruction to possession of immovable property:- (1) Where the holder of a decree for the possession of immovable property or the purchase of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.” The words ‘any person’ in the above rule are unqualified enough to include not only holder of decree and purchaser of property, but also anyone claiming right through judgment debtor. Therefore, an obstructer may also apply to executing court to adjudicate upon his claim. 9. In a decision in Silverline Forum Pvt. Ltd. v. Rajiv Trust & another,[1] it is held thus: (para 9) “At the outset, we may observe that it is difficult to agree with the High Court that resistance or obstructions made by a third party to the decree of execution cannot be gone into under Order 21, Rule 97 of the Code. Rules 97 to 106 in Order 21 of the Code are subsumed under the caption "Resistance to delivery of possession to decree-holder or purchaser". Those rules are intended to deal with every sort of resistance or obstructions offered by any person, Rule 97 specifically provides that when the holder of a decree for possession of immovable property is resisted or obstructed by "any person" in obtaining possession of the property such decree-holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the Court to proceed to adjudicate upon such complaint in accordance with the procedure laid down.” In para 14 of the above judgment, an earlier decision in Bhanwar Lal v. Satyanarain[2], was referred to, wherein it is held thus: "A reading of Order 21, Rule 97 CPC clearly envisages that "any perosn" even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or set up his own right, title or interest de hors the judgment-debtor and he resists execution of decree, then the Court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree- holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done." Similarly, In para 15 of the above judgment, an earlier decision in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal[3], was referred to, wherein it is held thus: "It is pertinent to note that the resistence and/or obstruction to possession of immovable property as contemplated by Order 21, Rule 97, CPC could have been offered by any person. The words 'any person'as contemplated by Order 21, Rule 97, sub-rule (1) are comprehensive enough to include apart from judgment-debtor or anyone claiming through him even persons claiming independently and who would, therefore, be total strangers to the decree. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..Consequently it must be held that Respondent 1's application dated 6-5-1991 though seeking only re-issuance of warrant for delivery of possession with aid of armed force in substance sought to bypass the previous resistance and obstruction offered by the appellant on the spot. Thus it was squarely covered by the sweep of Order 21, Rule 97, sub-rule (1) CPC. Once that happened the procedure laid down by sub-rule (2) thereof, had to be followed by the executing Court. The Court had to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the said order." In view of the above decisions, it is clear that the appellant, who is claiming right as tenant can make an application under Order XXI Rule 97 CPC to adjudicate upon his claim. 10. In another decision in Shreenath & another v. Rajesh & others[4], it is held thus: (para 14) “We find both either under the old law or the present law the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21, Rule 97, has to be decided by the Executive Court itself.” 11. The learned counsel for the respondents relied on a decision in Ratan Lal Jain & others v. Uma Shankar Vyas & others[5]. The said decision deals with Order XXI Rules 35 and 36 CPC and it has no bearing and application to the facts of the present case. The learned counsel for the respondents also relied on a decision in M.S. Murthy v. Gold Stone Exports Pvt. Ltd.[6], wherein it is held thus: “The decisions cited by the learned Counsel for the appellants are of no assistance. The petitioners, claiming their title/right through the parties to the decree, are bound by the decree. They are therefore not strangers or third parties to the decree. Their applications are, therefore liable to be dismissed, in limini, as not maintainable.” 12. But, in view of the decision of the Supreme Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust & another case, a third party who is claiming a right even through judgment debtor is entitled to file an application under Order XXI Rule 97 CPC. Following the said judgment, it is clear that Order XXI Rule 97 CPC can be invoked by any person, who has got some semblance of right over the property. Though the appellant is claiming right through judgment debtor, the claim has to be decided in an application under Order XXI Rule 97 CPC, but not by way of a separate suit, as required under Section 47 CPC. Therefore, rejecting the claim of the petitioner at the threshold stage is unwarranted and the trial Court ought to have numbered the application and decided the issue on merits. 13. In view of the foregoing discussion, the impugned order is set aside and the trial Court is directed to number the application and permit both parties to give reasonable opportunity for adducing evidence. This exercise has to be completed by the executing court within a period of six months from the date of receipt of a copy of this Order. 14. The C.C.C.A. is, accordingly, allowed. No costs. --------------------- 2.2.2011 (K.C.Bhanu, J.) DRK THE HON’BLE SRI JUSTICE K.C.BHANU CITY CIVIL COURT APPEAL No. 219 of 2010 2.2.2011 THE HON’BLE SRI JUSTICE K.C.BHANU CITY CIVIL COURT APPEAL No. 219 of 2010 2.2.2011 Between: J.Krishna …Appellant And Maliram Agarwal & others …Respondents [1] AIR 1998 Supreme Court 1754 [2] (1995) 1 Supreme Court Cases 6 [3] (1997) 3 Supreme Court Cases 694 [4] AIR 1998 Supreme Court 1827 [5] AIR 2002 Supreme Court 804 [6] 1999 (1) ALT 97