JUDGMENT
K. Sreedhar Rao, J.
1. This appeal filed against the order passed in Ex. No. 324 of 1997 on the file of the XII Additional Small Causes Judge, Bangalore arising out of HRC No. 866 of 1997 on the file of the Additional Small Causes Judge, Bangalore.
2. The appellant is the decree-holder obtained an eviction decree under the Rent Control Act against the first respondent in respect of premises No. 47. According to decree, the premises No. 47 measures East to West 70′ and North to South 40′ situated in Durgamba Temple Street, Kalasipalyam. The boundaries of the property is described as on the East by: Remaining portion of the property bearing No. 47; West by: Remaining portion of the property bearing No. 47; North by: Passage and South by: Thayappa’s property. The second respondent contends that premises bearing No. 51 belongs to him with the boundaries on the East by: Property No. 52, Zameer Enterprises; West by: Property No. 47, Syed Zameer Ahmed; North by: Passage and South by: Private Apartment.
3. In the execution case, it is the contention of the second respondent that under the guise of executing the decree of eviction in respect of premises No. 47, the decree holder has illegally obtained possession of premises No. 51 and has after taking possession, the decree holder has demolished the structures of premises No. 51.
4. An application under Order 21, Rules 97 and 101 of the CPC, is filed for restoration of possession to the second respondent. A Commissioner is appointed. The second respondent has examined himself as P.W. 1 and the Court Commissioner is examined as P.W. 2. 59 documents are marked on behalf of the objector-second respondent.
5. The Executing Court comes to the conclusion that the decree holder has taken possession of the property bearing No. 51 and not 47. Therefore, directed restoration. Aggrieved by the said order, the present appeal is filed.
6. On the maintainability, the learned Counsel for the appellant relied on the decision of this Court in the case of A. Chidamber v. Leela, 1989(2) Kar. L.J. 469 : ILR 1984 Kar. 3230, Per contra, the learned Counsel for the second respondent relied on the ruling of the Supreme Court in the case of N.S.S. Narayana Sarma and Ors. v. Goldstone Exports (Private) Limited and Ors., , the following observations are made.–
“15. Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating thereto. In Order 21, Rule 35 provisions are made empowering the Executing Court to deliver possession of the property to the decree-holder if necessary, by removing any person bound by the decree who refuses to vacate the property. In Rule 36 provision is made for delivery of formal or symbolical possession of the property in occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy. Rules 97 and 101 of Order 21 contain the provisions enabling the Executing Court to deal with a situation when a decree-holder entitled to possession of the property encounters obstruction from “any person”. From the provisions in these rules which have been quoted earlier the scheme is clear that the Legislature has vested wide powers in the Executing Court to deal with “all issues” relating to such matters. It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable property in his favour. Indeed, his difficulties in real and practical, sense arise after getting the decree. Presumably, to tackle such a situation and to allay the apprehension in the minds of litigants public that it takes years and years for the decree-holder to enjoy fruits of the decree, the Legislature made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. On a fair reading of the Rule it is manifest that the Legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree-holder or any other person in possession of the immovable property under execution and has vested the power in the Executing Court to deal with all questions arising in the matter irrespective of whether the Court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the Courts seized of an execution proceeding. The Court cannot shirk its responsibility by skirting the relevant issues arising in the case.
19. From the principles laid down in the decisions noted above, the position is manifest that when any person claiming title to the property in his possession obstructs 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 persons offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order 21, Rule 103 is to be treated as a decree”.
7. The bone of contention between the parties is the identity of the property delivered in execution to the appellant. According to the appellant he has taken delivery of premises No. 47. But, according to the second respondent the appellant under the guise of decree has taken delivery of his premises bearing No. 51. In view of the ruling of the Supreme Court the question of identity of the property has to be decided by the Executing Court under Order 21, Rule 97 of the CPC, irrespective of the fact whether the property claimed by the objector is subject matter of the decree or a different property. The Executing Court has to go into the question as to whether the disputed property is one covered by a decree or a different property and this question has to be decided by the Executing Court. The objector however has an option of filing a separate suit but that does not mean that he has no right to invoke the provisions of Order 21, Rule 97 of the CPC, for adjudication of his rights.
8. I find neither the Court nor the parties have understood the crux of the issue, therefore, the necessary evidence in the regard is not placed. The evidence on record is not sufficient to render the satisfactory verdict either way. The case requires thorough survey of the properties in question by a competent surveyor to fix up the identity and further an opportunity to the parties to be given for adducing necessary evidence available with them for just and proper adjudication. In that view, the order of the Trial Court is set aside and the matter is remanded to the Trial Court for fresh adjudication by giving proper and necessary opportunity to the parties. The Trial Court shall dispose of the case within six months from the date of the order. Accordingly, the Appeal is disposed of.