RAGHUNATH GUPTA Vs. NAND RAM VARMA AND ANR.

JUDGEMENT

(1.) THE facts giving rise to the Appellant are shortly these: On 26 -7 -1948, the owner of a house in 14 Faiz Bazaar Road at Delhi, who had filed a suit in ejectment against one Jaiswal alleged to be his tenant, entered into a compromise with this Jaiswal and on this compromise a consent decree was passed directing delivery of possession to the Plaintiff by Jaiswal. Following this decree the D.H. took out a warrant under Order 21, Rule 35, Code of Civil Procedure, returnable on 6 -11 -1948, but when the Bailiff went to the house delivery of possession was obstructed by three persons one of whom was Raghunath Gupta, tho present Applicant before me. On the 5th of November following these obstructions the D.H. made two Appellants under Order 21, Rule 97 in respect of the obstructions caused. 19 -1 -1949 was the date fixed for hearing these Appellants. On that date, neither the D.H, nor any of the obstructers appeared and the Appellants of the D.H. were dismissed for default. Appellants or restoration were later dismissed on 9 -4 -1949. On 5 -7 -1949, the D.H. filed a fresh Appellant under Order 21, Rule 35, and on some other date, according to Counsel for the present Petitioner he filed a suit under Order 21 Rule 103, which the learned Counsel says was dismissed apparently for default on 4 -5 -1950. The learned Counsel for the Respondent does not admit that any such suit was filed, and there is nothing on record before me on which the matter can be determined. There is no suggestion, how -ever, as the foregoing account indicates, that any suit is at present pending. To the second execution Appellant the present Applicant took objection and his claim was that no second execution Appellant could lie. The learned Subordinate Judge, 1st Class, Delhi, has held that a second execution Appellant can lie and the Applicant has now come in revn.

(2.) IT has been urged before me that the dismissal for default was an order under Order 21, Rule 99, but on the wording of Rule 99 it is dear that this argument cannot be supported. Rule 99 is in these terms: