1. This is a Rule obtained, at the instance of a claimant under Order XXI, Rule 100 of the Civil Procedure Code calling upon the opposite party, the decree-holder, to show cause why the order of the Munsif should not be set aside on the ground that it was made without jurisdiction.
2. The Claimant applied under Rule 100, and, the decree-holder not appearing, he obtained an order in his favour under Rule 101. Rule 103 provides that 'any party not being a judgment-debtor against Whom an order is made under Rule 98, Rule 99 or 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 shall be Conclusive.' The claimant therefore maintains that the order in his favour though made in the absence of the decree-holder is conclusive: and, his complaint is that notwithstanding the terms of Rule 103, the Munsif has set aside the order made under Rule 101. The Munsif appears to have acted under Order IX, Rule 13. That rule, as it is expressed, clearly does not apply to a proceeding in execution; but an attempt has been made before us to uphold the Munsif's order on the terms of Section 141 of the Code which provides that 'The procedure provided in this Code in regard to suits shall be followed, as far as at can be made applicable, in 'all proceedings in any Court of Civil jurisdiction.' This section reproduces with modification Section 647 of the previous Code. But in Section 647 there was an explanation in these terms; 'This section does not apply to applications for the execution of decrees, which are proceedings in suits.' That explanation has been omitted, and it has been argued before us that this omission is an indication that the Legislature in passing the present Code intended that Section 141 should have a wider, operation than Section 647. There is a certain amount of force in this argument, but it overlooks the history of this section and the case law. At one time there was a considerable divergence of Opinion as to whether Section 647 applied to execution proceedings: and, it was in consequence of this that by Act VI of 1892 this explanation was introduced into the section of the Code of 1882. But after this alteration in the law, the Privy Council by a case, Thakur Prasad v. Fakirullah (1894) I.L.R. 17 All. 106 decided on section, 647 as it stood before the explanation was added, that the section did not apply to execution proceedings. The purpose of the Legislature in omitting that explanation was to do away with that which was shown to be unnecessary by the Privy Council decision and to rely upon the terms of the section as interpreted by the Privy Council. So it was that the explanation came to be omitted. This may have been an unfortunate way of proceeding, because it involves some knowledge of the history of Section 647 and of the decision on that section to appreciate the effect of this change; but this is how the matter was dealt with by the Legislature. The result is that Section 141 does not make applicable to proceedings in execution all the procedure provided by the Code, and I think for very good, reason as is indicated by Mr. Justice Mookerjee is Asim Mondal v. Raj Mohan Das (1910) 13 C.L.J. 532 to hold otherwise would lead to complication and to results which never could have been contemplated. It is not as though there was any necessity in the interest of justice that the provision of Rule 13, Order IX, should be applicable to proceedings in execution, because, the order is not conclusive, but is subject to the right of the person aggrieved to bring a suit. I therefore hold that Order IX, Rule 13 is not applicable to a proceeding under Rules 100 and 101 of Order XXI, and that the learned Munsif had not the jurisdiction which he purported to exercise. We must, therefore, make the Rule absolute.
3. Having regard to all the circumstances, we will not make any order as to costs.
4. I agree.