JUDGMENT S.U. Khan, J.
1. This writ petition has been filed by tenant which is directed against order dated 5.3.1998, passed by Prescribed Authority/ J.S.C.C., Saharanpur in P.A. Misc. Case No. 19 of 1997. Through the said order application of petitioner/tenant for redelivery of possession of property was rejected. Application was numbered as paper No. 4. In the said application ft was alleged that the property in dispute was in tenancy occupation of the petitioner and it had illegally been dispossessed from the same in execution proceedings under Section 23 of U.P. Act No. 13 of 1972 in between landlord/respondent and his other tenant Dr. R.N. Bagley. Petitioner and Dr. Bagley were tenants of landlord/respondents and the properties in their tenancy occupation were situate side by side. The landlord/respondents pleaded that the property in dispute was never in tenancy occupation of the tenant/ petitioner. The landlord's case was that in the receipts issued to the petitioner and which were filed by the petitioner itself, the property in its tenancy occupation was described as three motor garages, hence property in dispute which is in the form of vacant land (adjacent to the said garage) admeasuring 853 sq. metres could not be asserted by the petitioner to be in its tenancy occupation. The main evidence/circumstance in order to show that the land in dispute was part of the petitioner's tenancy ; relied upon by the tenant was the statement of the landlord given in proceedings under Urban Land Ceiling Act. The tenant/petitioner contended that in the said statement land in dispute was shown to be in tenancy occupation of the petitioner. The Prescribed Authority while rejecting the application of the petitioner for redelivery of possession mainly placed reliance upon the document written by the tenant at the time when possession was taken by the landlord from the other tenant Dr. R.N. Bagley. Copy of the said document dated 1.2.1997 has been annexed along with supplementary-affidavit on behalf of the landlord/respondent filed on 2.5.2003. The said document recites as follows :
"Today dated 1.2.1997 after taking possession of Kothi No. 2/638 Ambala Road by Dr. Nalneesh Kumar S/o Sri Buddha Prakash, R/o Rani Bazar, Saharanpur, Indian Motor Transport Company through Guru Prakash Singh (petitioner) will have no objection if during construction the iron pillars which are fixed remain as and where they are fixed."
2. Through the same supplementary-affidavit copy of plaint of O.S. No. 458 of 1997 on the file of Civil Judge (Jr. Div.), Saharanpur, has also been filed. The said suit has been instituted by the petitioner against respondent Nos. 2 and 3. In the said suit relief for prohibitory Injunction seeking to restrain the defendants from interfering in possession of the plaintiff as well as for mandatory injunction directing the defendants to deliver the property of which they illegally took possession in execution proceedings under Section 23 of the Act against Dr. R.N. Bagley has been sought.
3. In my opinion, this writ petition is liable to be dismissed on two grounds. Firstly pendency of the suit for the same relief and secondly on the ground of non-maintainability of the application before the Prescribed Authority under U.P. Act No. 13 of 1972. As far as the first ground is concerned, it is well-settled that writ petition may be dismissed on the ground of alternative remedy. In the instant case not only the alternative remedy of suit is available to the petitioner but the same is being pursued by the petitioner since before filing of the writ petition. The said suit is still pending.
4. As far as the question of maintainability of application before Prescribed Authority is concerned it is settled that in execution proceedings if some person other than judgment debtor has been dispossessed, he can file application before the executing court for redelivery of possession under Order XXI, Rule 99, C.P.C. The same principle will apply to proceedings under Order XXIII of U.P. Act No. 13 of 1972 (See in this regard AIR 1977 All 8). However, if in execution of decree, a person other than judgment debtor is dispossessed from the property which is not included in the decree, then there is no provision under Order XXI, C.P.C. which permits filing of" application by such person for redelivery of possession. This point is concluded by AIR 1975 All 424. Hence, in my opinion on the basis of the allegation made in the application which was rejected by the impugned order to the effect that in execution of release order against another tenant (Dr. R.N. Bagley) petitioner was dispossessed from the property which was in its tenancy occupation and not included in the release order passed against Dr. R.N. Bagley, the application before the Prescribed Authority was not maintainable.
5. Accordingly writ petition is dismissed. However, it is clarified that the civil court where the aforesaid suit is pending shall decide the suit on its merit without being influenced in the least by or taking into consideration the observations made by Prescribed Authority in its order dated 5.3.1998, impugned In the instant writ petition.