Panchapakesa Aiyar, J.
1. The only point for determination in this petition is whether a private purchaser from a party in whose favour delivery of possession of properties was ordered in a preliminary decree on condition of his depositing certain moneys in Court by a certain date but who failed to satisfy the condition and get an unconditional order of delivery of possession of the properties, and who is afterwards obstructed by persons not parties to the suit, and filed a petition under Order 21, Rule 97, Civil Procedure Code, for delivery free from their obstruction, which petition was dismissed summarily without investigating into the question and he was directed to file a separate suit against the obstructors in the usual course for possession of the properties, can claim to pay a court-fee of Rs. 15 for such reliefs, under Article 17, Clause 1 of Schedule II of the Court-Fees Act, or has to pay court-fee on the admitted market value of the properties, namely, on Rs. 10,000. The lower Court has held, agreeing with the Court-fee Examiner, that he should pay court-fee on the market value of Rs. 10,000 for this relief.
2. The learned Counsel for the petitioner contends that this is a wrong order, and that the proper court-fee payable is only Rs. 15 under Article 17, Clause 1 of Schedule II. The learned Government Pleader supports the order of the lower Court on both the grounds, namely, that there was no unconditional decree for delivery of properties in favour of the petitioner or his predecessor in title (the petitioner was not a Court auction-purchaser) and that the order dismissing the application under Order 21, Rule 97, Civil Procedure Code, was not one passed after investigation, or one made under Rule 98, 99 or 101 of Order 21. I agree.
3. There is, in my opinion, a fundamental difference between a conditional order of delivery in a preliminary decree, which becomes frustrated by the condition not being satisfied and an unconditional order of delivery. There is also a fundamental difference between an order passed in an application under Order 21, Rule 97, Civil Procedure Code, after investigation, and under Rule 98, 99 or 101, and an order passed summarily without investigation, because the applicant's remedy is, in the latter case, simply to file a separate suit in the usual course, and under the usual conditions, including the normal court-fee calculated on the market value.
4. I cannot agree with the contention of the learned Counsel for the petitioner that there is no difference between a suit filed against an order passed under Order 21, Rule 63, Civil Procedure Code, and a suit filed against an order passed under Order 21, Rule 103, Civil Procedure Code. The first case is a simple one not hedged in with any conditions, after the recent amendment, whereas Order 21, Rule 103 still contains the conditions and clauses limiting the reliefs which were taken away in the case of Order 21, Rule 63, Civil Procedure Code, by the amendment. The Legislature must certainly have intended some distinction by proceeding in this different fashion. Both Mulla and Rustomjee are agreed that the distinction intended was that a party could file a suit under Order 21, Rule 103, Civil Procedure ?ode, only in cases where an application under Order 21, Rule 97, Civil Procedure Code, has been dismissed after investigation.
5. Of course, as already stated, even apart from that, a petition under Order 21, Rule 97, Civil Procedure Code, would not have lain in this case at all, as the applicant had no unconditional decree in his favour for delivery of the suit properties, but only a conditional decree for delivery which became nullified by the condition not being satisfied. The petitioner was a mere private purchaser, and he claims to have been obstructed by what he calls ' private trespassers.' He must resort to the usual remedy and file a suit, paying the full court-fee calculated on the market value. The lower Court's order is confirmed, and the petition is dismissed with costs. Costs two sets, as the contesting defendants and the Government Pleader have been given notices and have entered their appearances.