SK WASI AHMAD Vs. SANTESHWAR MISHRA

JUDGEMENT

(1.) - This second appeal by the defendents arises out of a suit for declaration of title and a further declaration that the auction sale of the property in an execution proceeding and the order passed in a miscellaneous case are illegal, void and inoperative. The facts relevant to the question raised are that the plaintiff filed application under Order XXI, Rule 100 of the Code of Civil Procedure (in short, 'the Code'), as it stood prior to its amendment by Act No 104 of 1976 complaining of illegal +dispossession, which was dismissed on November 21, 1977. The suit in terms of Rule 103, as unamended, was instituted on October 6, 1978. The suit was dismissed by the trial court but has been decreed by the first appellate court holding that it was maintainable and the plaintiff was entitled to declaration of his title and recovery of possession.

(2.) Mr. Wasi Akhtar, learned counsel for the appellants raised a short point. He submitted that by reason of the amended provisions, the suit was not maintainable and, therefore the decree is without jurisdiction.

(3.) It would be appropriate at this very stage to refer to the relevant provisions. The Code underwent substantial changes by Amendment Act 104 of 1976 (in short 'the Amendment Act') which came into effect on February 1, 1977. The scheme of Code as it stood before its amendment, so far as it is relevant to the instant case, was that if a person other than the judgment-debtor was dispossessed in execution, he could apply under Rule 100 of Order XXI. If the executing court found that the applicant was in possession on his own account or on account of some person other than the judgment-debtor, the court would allow the application and put the applicant in possession under Rule 101. Rule 103 which made the orders passed, inter alia under Rule 101 conclusive subject to regular suit, provided that: