SYED ABDUT HAKIM Vs. MANGAL CHAND

JUDGEMENT

(1.) In this case the point that falls to be determined is the meaning of Order 21, Rule 103, Civil P.C. which provides: Any party not being a judgment-debtor against whom an order is made under Rs. 98,99 or Rs. 101 may institute a suit to establish the right which he claims to the present possession of the property; but subject to the result of such suit (if any) the order shall be conclusive.

(2.) An order was made against the plaintiff who is the appellant in this case in the following circumstances: The plaintiff was the assignee of a decree obtained by the Allahabad Bank against defendant 2. He proceeded to execute the decree by selling the property which was the subject-matter of this action and in the result purchased the property and obtained possession. Defendant 1, who is the respondent in this appeal, was a usufructuary mortgagee of the property under a mortgage dated 20 October 1920.

(3.) On the next day he gave possession to the mortgagor and allowed him toremain in possession by granting him a lease. In course of time that lease came to an end and the defendant brought an action against defendant 2 who was the mortgagor. In the meantime as I have already indicated the plaintiff, appellant obtained possession and he was resisted in his possession by the defendant- respondent. The defendant-respondent moved the Court under Order 21, Civil P.C. and an order was made in his favour and possession was given to him. In those circumstances the plaintiff brought this action.