CHANDRAKANT MALLAPPA DESAI Vs. MISHRIMAL NAMAL OSWAL

JUDGEMENT

(1.) The following substantial question of law raises for consideration in this appeal:

(2.) It is submitted on behalf of the appellants-decree-holders that the 2nd respondent who is not a party to the decree, has filed an application under S. 151 of the Code of Civil Procedure (for short, 'the Code'), to recall the delivery warrant and to stay all further proceedings in the execution. The appellants - decree holders have filed the statement of objections to this application, which is treated by the lower appellate Court as an application filed under O. 21, R. 97 of the Code. It is further submitted that even if it is accepted that the statement of objections of the decree-holders can be treated as an application filed under O. 21, R. 97 of the Code, the lower appellate Court is not justified in setting aside the order passed by the executing Court on an application filed under O. 21, R. 97 of the Code; and further staying all further procedings in the execution. In support of this submission, learned Counsel for the appellants relies upon R. 101 of O. 21 of the Code.

(3.) On the contrary, it is contended on behalf of the 2nd respondent-obstructor that the Suit O. S. 258 of 1978 was pending on the date the application under S. 151 of the Code was filed; therefore, no purpose would be served in deciding this application as the, very same matter is required to be decided in the suit pending between the same parties. It is further argued that R. 104 of O. 21 of the Code, specifically provides that every order made under R. 101 or R. 103 of the Code shall subject to the result of any suit that may be pending on the date of Commentcement of the proceeding in which such order is made: therefore, the lower appellate Court, it is submitted, is justified in law in passing the order of the nature in question.