1. This is an application in revision by the defendants arising out of a suit under Section 9, Specific Relief Act. The defendants in execution of their mortgage decree purchased a house at auction and applied for delivery of possession. On 23rd February 1930 the Amin delivered possession to the defendants. The present plaintiffs filed objections under Order 21, Rule 100, Civil P.C., but their objections were ultimately dismissed. Instead of bringing a regular suit they filed a suit under Section 9, Specific Relief Act, alleging that they had been wrongly dispossessed. The learned Munsif has gone into the question of fact and has come to the conclusion that the plaintiffs were in possession of the house and were wrongly dispossessed within six months of the suit. He has accordingly restored possession to them. The defendants have come up in revision and urged that no suit lay under Section 9, Specific Relief Act. It seems to us that the contention of the defendants must be accepted. There is no doubt that formal delivery of possession was given to the defendants in due course of lay through an officer of the Court. It was not a case where the defendants themselves dispossessed the plaintiffs. The plaintiffs filed an objection in the Court alleging that they were in possession and had been dispossessed by the holder of the decree. The Court investigated their claim and held that they had not been in possession. It accordingly dismissed the objection.
2. Under Rule 103, Order 21, Civil P.C. any party not being a judgment debtor against whom an order is made under Rule 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 is conclusive. The order of the execution Court is conclusive against the present plaintiffs unless they can get a decree establishing their right which they claim to the present possession of the property. Their merely showing that they were in possession and had been dispossessed would not be sufficient. As a matter of fact the finding of the Court that they were not in possession at all on that date is binding upon them. They must establish their right to possession on the assumption that they were not in possession on that date. The suit to establish the right to possession contemplated by Order 21, Rule 103,Civil P.C., is in our opinion not one under Section 9, Specific Relief Act. This is also clear from the language of Section 9, Specific Relief Act, itself. It is only where a person has been dispossessed without his consent otherwise than in due course of law,' that he can recover possession in the summary proceeding. In a case where the execution Court has put the auction-purchaser formally in possession, and has dismissed an objection raised by the rival claimant it is not a case of dispossession otherwise than in due course of law. The delivery of possession was in fact in duo course of law. This view is further strengthened by the circumstance that whereas a period of six months is prescribed under Article 3, Lim. Act, for a suit under Section 9, Specific Relief Act, there is a period of one year under Article 11(a) of the Act for a suit by a person to establish his right to the present possession of the property against whom an order has been passed by an execution Court. Obviously the two classes of suits are of a different nature and fall in different categories.
3. We are accordingly of opinion that Section 9, Specific Relief Act, had no application whatsoever to the present suit, and the Court below has acted without jurisdiction or to say the least, with material irregularity in decreeing the claim under that section without going into the plaintiffs' right to possession. We however find that if the present suit were dismissed and the plaintiffs were compelled to institute a fresh suit for declaration, their claim would be barred by time. We consider it unnecessary to decide whether any bar of res judicata arises against the plaintiffs in consequence of a previous declaratory suit brought by at least some of them which failed. We allow this revision and setting aside the decree of the Court below send the case back to that Court with directions to fix a reasonable time for allowing the plaintiffs if they be so advised to amend their plaint so as to convert it into one for a regular suit for possession either based on title or right to possession and to pay the additional court-fee for such relief, If the plaintiffs fail to amend the plaint, the Court would dismiss the suit. If they amend the plaint, the defendants would be at liberty to file a supplementary written statement and the case would then be disposed of according to law. We direct that in any event the defendants must pay the costs of the plaintiffs of the present litigation in both the Courts.