CRP 253/2010 BEFORE HON’BLE MR JUSTICE U.B.SAHA JUDGMENT(oral) 1. This revision petition is filed under Article 227 of the Constitution o f India for setting aside the order dated 25.6.2010 passed by the learned Civil Judge, No. 2, Kamrup, Guwahati in Misc. (J) Case No. 139 of 2010 arising out of T. Ex. No. 7 of 2001, whereby and whereunder the application filed by the prese nt petitioners under Order XXI Rules 97,99 and 101 CPC read with Section 151 CPC has been rejected. 2. Heard Mr. P. Kalita, learned Counsel for the petitioners and Mr. P.K. De ka, learned Counsel for the respondents. 3. As agreed to by the learned Counsel for the parties, this petition is ta ken up for final disposal at this stage. 4. The pleaded case of the petitioners is as follows: One Punya Pal Das, since deceased, filed the Title Suit No. 50 of 1973, against the predecessor-in-interest of the present petitioners for recovery of the possession on declaration of title in respect of a plot of land mentioned i n Schedule-A of the plaint before the Court of the learned Assistant District J udge, No.1, Guwahati, which was subsequently transferred to the Court of the lea rned Assistant District Judge, No.2, Guwahati and renumbered as Title Suit No. 2 5 of 1978. During the pendency of the said suit, the original defendant No.1, Kuhiram Deka died. Thereafter, his six sons, one wife and two daughters were sub stituted in the suit, who then filed their written statements denying the claim of the plaintiff. After framing the issues and hearing of the parties, the said suit was decreed by the learned trial Court by its judgment and decree dated 15 .7.1981. It is also pleaded that the said suit was decreed exparte against the d efendant No.2, Nabajyoti club and its office bearers as well as one pan shopkee per, who remained silent against the claim of the plaintiff. Against the aforesa id judgment and decree, the predecessor in interest of the present petitioners a nd other legal heirs of late Kuhiram Deka had filed the Title Appeal No. 8 of 1 981, which was dismissed by the Additional District Judge, Kamrup, Guwahati vide judgment and decree dtd. 3.5.85 affirming the judgment of the learned Trial Cou rt. Thereafter, the second appeal No. 103 of 1996 was filed before this Court by the judgment debtors of the aforesaid suit, which was also dismissed vide judgm ent and decree dtd. 24.7.1996. Then an execution case was filed by the opposite parties/decree holders for execution of the judgment and decree dated 15.7.81 pa ssed in T.S. 25 of 1978, which is pending for disposal before the Court of the learned Civil Judge, No.2, Kamrup, Guwahati, hereinafter referred to as ’the ex ecuting court’. The learned executing court issued the writ of delivery of poss ession on 30.8.2010 with a direction to the Baliff of the executing court to put the decree holders in possession of the decreetal land by evicting the judgmen t debtors from the decreetal land. 5. In between passing of the judgment and decree dated 15.7.1981 and filin g of the execution case, the judgment debtor Satya Deka died in the year 1998 leaving behind his legal heirs/successors, the present petitioner No 1 to 3 and the judgment debtor Promode Deka died in the year 2006 leaving behind his legal heirs/successors, the present petitioner No. 4 and 5. As the judgment and decree passed by the learned Trial Court cannot be executed until and unless all the l egal heirs and successors of the deceased judgment debtors are brought on record of the execution case, and an opportunity of being heard them in the matter o f execution has not been given before passing the order of eviction and deliver y of possession by the executing Court on 30.10.2010, the present petitioners f iled an application under Order XXI Rules 97,99 and 101 CPC read with Section 151 CPC in T ( ex) No. 7 of 2010 before the executing court which was registere d as Misc (J) No. 131 of 2010 and having been rejected the said application by t he executing court, they preferred the instant revision petition. 6. Mr. Kalita, learned Counsel for the petitioners while assailing the impu gned order submits that the learned executing court failed to understand the provisions of Or. XXI Rules 97, 99 and 101 CPC for, he did not treat the afores aid application of the petitioners as a suit and also not decided the same as pe r prescription of law. Hence it failed to exercise its jurisdiction which is rev isable. 7. To resist the aforesaid contention of Mr. Kalita, Mr. Deka, learned Coun sel for the respondents decree holders would contend that the instant revision petition is not maintainable, as the decision in an application under Or. XXI Ru les 97, 99 and 101 CPC is a decree, the remedy to the petitioners for challengi ng the impugned order is only to file an appeal, not the revision petition, a nd when an alternative remedy is prescribed under a statute like an appeal, in t hat case, the Court should not exercise its supervisory power under Article 227 of the Constitution of India. More so, when there is no jurisdictional error com mitted by the executing court, at best, it can be said that the order cum decre e is not well reasoned and the said point can be agitated in an appeal. In supp ort of his aforesaid submission, he referred to a decision of the Apex Court in NSS Narayan Sarma & others Vs. Goldstone Exports ( P) Ltd & others, (2002) 1 S CC 662, particularly para-19 of the said report, wherein it is stated inter ali a, ’from the principal laid down in the decision noted above, the position is ma nifest that when any person claiming title to the property in his possession obs tructs the attempt by the decree-holder to dispossess him from the said property the executing court is competent to consider all questions raised by the person s offering obstruction against execution of the decree and pass appropriate orde r which under the provisions of Order 21 Rule 103 is to be treated as a decree.’ 8. He also referred to a decision of the Apex Court in Brahmdeo Chaudhary v s. Rishikesh Prasad Jaiswal (1997)3 SCC 694 wherein it is stated inter alia tha t A conjoint reading of Order XXI Rules 97, 98, 99 and 101 projects the following picture: (1) If a decree-holder, is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order XXI, Rule 35 then the decree-holder has to move an application under Order XXI, Rule 97 fo r removal of such obstruction and after hearing the decree-holder and the obstr uctionist the Court can pass appropriate orders after adjudicating upon the cont roversy between the parties as enjoined by Order XXI, Rule 97 sub-rule (2) read with Order XXI, Rule 98. It is obvious that after such adjudication of it is fo und that the resistance or obstruction was occasioned without just cause by the judgment-debtor or by some other person at his instigation or on his behalf th en such obstruction or resistance would be removed as per Order XXI, Rule 98 sub -rule(2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order XXI, Rule 101 and no separate suit would lie against such order meaning there by the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree. 9. Having heard the learned Counsel for the parties and on going through th e law reports as well as impugned order, this Court is of considered opinion th at the order passed by the executing court is not a well reasoned one, but very much within its jurisdiction. Not only that, in view of the aforesaid observatio n of the Apex Court, the said order is deemed to be a decree. Being impugned or der is a decree, the appropriate remedy is to file an appeal. There is no doubt that alternative remedy cannot be a ground to set at naught an application filed under Article 227 of the Constitution subject to the Court below failed to exer cise its jurisdiction as vested on it or the order is palpable wrong. Even if, the order of the Court below is a non-speaking, unreasoned order, then also it w ould not be proper to exercise the power vested on this Court under Article 227 of the Constitution when there is scope for filing of appeal. In the instant cas e, the petitioners without preferring the appeal chose to prefer an application for revision to a wrong forum. Hence, it would be proper for this Court not to e xercise its supervisory jurisdiction as this Court has already held that the ord er which has been passed by the learned trial Court though not well reasoned, b ut within its jurisdiction. 10. For the aforesaid reasons, the instant revision petition is rejected. Ho wever, the rejection of the instant revision petition would not be a bar for the petitioners to approach the appellate forum as the petitioners filed the instan t petition in a wrong forum.