THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.S.A.NO.22 OF 2003 JUDGMENT:- The Civil Miscellaneous Second Appeal is filed against the Judgment dated 20-12-2002 in A.S.No.31 of 2001 of the Senior Civil Judge, Razole confirming the order in E.A.No.148 of 2000 in E.P.No.48 of 1997 in O.S.No.115 of 1979 on the file of the Court of Principal Senior Civil Judge, Razole. The appellant herein is the decree holder and obtained a decree against the judgment-debtor for recovery of possession of property, which is Ac.0.30 cents in R.S.No.63/5. In execution of the decree, E.P was filed and E.A.No.148 of 2000 was filed by a third party claiming that she is interested in an extent of AC.0.20 cents of land out of AC.1.58 cents in R.S.No.63/5 and has got a tiled house therein bearing D.No.2-220 and has been in possession and enjoyment of the property. The decree holder being aware of the same, filed the suit O.S.No.115 of 1979 for declaration of title and recovery of possession of the property to an extent of AC.0.30 cents without impleading the petitioner as a party. Thereafter, the claim petitioner having come to know about the suit raised a dispute and elders interfered and the decree holder has executed an agreement of sale to an extent of Ac.0.30 cents including the petition schedule property, which is Ac.0.20 cents and has been in possession and enjoyment of the property. On the basis of the agreement of sale, the suit O.S.No.24 of 1988 for specific performance was filed and it was dismissed and at the time of filing of the claim petition A.S.No.61 of 1996 was pending on the file of the Senior Civil Judge, Razole. It was alleged that the decree holder suppressed the above facts, has filed E.P for delivery of the property without disclosing even existence of the house. When Amin went, resistance was given and subsequently the application under Order XXI, Rule 97 was filed. The decree holder claimed that the judgment in O.S.No.115 of 1979 has become final and the suit for specific performance having been dismissed the petitioner has no right or interest in property. After considering all the rival contentions and taking into consideration the evidence, E.A. was allowed and as against that the appeal was preferred and the appellate court also confirmed the order of the lower court. Aggrieved by the said order, the present Second Appeal is filed. Now the point that arises for consideration is:- Whether the claim petitioner having lost the suit for specific performance can still maintain a claim for right to possession and whether the courts below are right in allowing the claim? POINT:- The courts below have taken into consideration the fact that the claim petitioner has been in possession of the property exclusively and has raised a tiled house bearing No.2-220 and in the execution proceedings the existence of the house was not shown and therefore the claimant is entitled for the relief. Before considering the contentions, it is to be noted that whenever any objection is raised even by a third party at the time of delivery, under Order XXI Rule 97 CPC mandates that enquiry should be made as if it is a suit and no separate suit is maintainable and therefore it is the duty of the court to consider as to whether the claimant has got right to possession and whether the claimant can resist delivery of the possession of the property. Even from the allegations of the claim petition, by the date of filing of the suit, the claim petitioner is said to be in possession of the property. It has to be noted that after the institution of this suit O.S.No.115 of 1979, it is the claim petitioner that has entered into an agreement of sale with regard to schedule property shown in the claim petition from the respondent and filed the suit O.S.No.24 of 1988 against both the decree holder and judgment debtor and the specific performance was dismissed. Though by the time the claim petition was filed, the appeal is said to be pending but as can be seen from the order of the appellate court, the appeal was dismissed on 17-10-2000. There is nothing to show that the claim petitioner has filed any Second Appeal. Mere non-mentioning of the existence of the house is no ground to hold that the claim petitioner has got right, probably, after the purchase under the agreement of sale. Even by the date of agreement of sale, she is in possession of that property, which is the subject matter of the agreement. When it is not disputed that what was purchased by the claim petitioner is subject matter of O.S.No.115 of 1979, the fruits of the decree under the above suit cannot be denied to the appellant. Therefore, from the above narration of the facts, it is quite clear that the claim petitioner has recognized the decree holder as the person entitled to the property and consequently entered into an agreement of sale with regard to property, which is also the subject matter of the suit O.S.No.115 of 1979. Evidently, the agreement was entered into taking into consideration the possession of the claim petitioner. It is to be noted that when a decree is sought to be executed and resistance is raised, it is not the mere possession that is relevant and what is to be considered is whether the person resisting delivery of possession has got right to possession in the property. It is needless to say when the suit for specific performance was dismissed, the claimant has no right to possession and she cannot continue to be in possession of the property since the dispute had already been settled and again in the application under Order XXI, Rule 97 CPC cannot raise the right under the agreement. If the right under the agreement of sale is not enforceable, the claimant having opted for an enquiry is bound by the decree and therefore cannot resist the delivery of the property. Both the courts have not properly viewed the matter in right perspective keeping in view the provisions of Order XXI, Rule 97 CPC and consequences of the dismissal of the suit for specific performance and allowed the claim which is not valid. Therefore, the appeal is liable to be allowed. In the result, the Civil Miscellaneous Second Appeal is allowed by setting aside the judgment in A.S.No.31 of 2001 and also the order in E.A.No.148 of 2000 in E.P.No.48 of 1997 in O.S.No.115 of 1979 on the file of the Court of Principal Junior Civil Judge, Razole. The decree holder will be entitled for possession and can proceed with the execution of the decree. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 26-09-2011 TSNR