*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9682/2009 Bhagwant B. Dham. ..Petitioner -VERSUS- Kapil Madankishore Mehra. ..Respondent ............... Mr.V.G.Mehta, Advocate a/w Mr.Manoj Dalvi, for the Petitioner. Mr.Uday Puri, Advocate i/b M/s Uday Puri & Company, for the Respondent. ............... CORAM: A.P. DESHPANDE, J. Dated 26th November, 2009. PC:- 1 The present petition is filed by the decree holder calling in question two orders passed by the Executing Court dated 10.08.2009 and 31.08.2009 respectively. The Petitioner/ Decree Holder had obtained the decree for possession against the Respondent/ Defendant. According to the Petitioner, in execution of the decree, he obtained the possession of the suit property on 26.11.2008 which fact is disputed by the Respondent. The Respondent who was aggrieved by his dis-possession choose to take recourse to two remedies available to him (1) by filing a suit on 15.12.2008 and (2) by raising an objection under Order-21 Rule-99 of the Civil Procedure Code, which came to be filed on 21.12.2008. The Respondent withdrew the suit on 05.01.2009 and by the *2* impugned order dated 10.08.2009, the Respondent has been permitted to withdraw his application under Order-21 Rule-99. The Trial Court, acting on the application moved by the Respondent that he is no longer interested in prosecuting the application, has proceeded to reject the application as withdrawn by an order dated 10.08.2009. Thereafter, the Petitioner moved an application calling upon the Court, not to permit the Respondent to withdraw the application and urged to decide the same in accordance with law. The said application moved by the Petitioner came to be rejected by an order dated 31.08.2009. Hence, this Writ Petition. 2 The learned counsel for the Petitioner has placed on record the Full Bench judgment of the Karnataka High Court reported in AIR 1998 Karnataka 186 in case of V.K.Rama Setty vs. A.Gopinath. In the said judgment, the Full Bench has held that a person who is dispossessed in execution of a decree and who is not a Judgment Debtor, has two remedies open (1) to move an application under Order-21 Rule-99 of the Civil Procedure Code and (2) to file a substantive suit. In that context, the Full Bench has observed in paragraph No.13 which reads thus:- “13. In the present case, the respondent had filed application under Order-21 Rule-99 of the C.P.C. on 18.8.1982. Once such an application is filed it is mandatory on the part of the Court as provided under sub-rule (2) of Rule 99, to dispose of the same in accordance with the provisions contained in Rules 100 and 101 of Order 21 of the C.P.C. as noticed above. It is further of importance to note that once an application is *3* filed by the aggrieved person under Rule 97 or 99 then Rule 101 in an unambiguous term bars the filing of a separate suit on any question arising between the parties including the question relating to the right, title and interest in the property.” In the said case, as the Respondent had filed an application under Order-21 Rule-99, the Full Bench held that the Trial Court was obliged to decide the said application in accordance with the provisions of the Rules-100 and 101 of Order-21 of the Civil Procedure Code. The said observations are sought to be read so as to mean that even if the party wants to withdraw an application under Order-21 Rule-99, the Court cannot permit such withdrawal. 3 There is no substance in the said contentions raised by the learned counsel for the Petitioner and the same deserves to be rejected. 4 It is next submitted by the learned counsel for the Petitioner that the Order-23 has no application to the execution proceedings and reliance is placed on Rule-4 of Order-23. 5 No doubt, Order-23 by itself does not apply to the execution proceedings. Nonetheless underlined principle laid down in Order-23 can be applied to the execution proceedings such as permitting withdrawal of an application under Order-21 Rule-99 if the Applicant so chooses. 6 The learned counsel for the Respondent has submitted that the proceedings under Order-21 Rule-99 which is in the nature of an option of filing of a suit needs to be treated like a suit. Hence, *4* the same ought to be regulated by Order-23. 7 In the result, there being no merit in the petition, the same is summarily dismissed. (A.P. Deshpande, J)