1. This is a petition for revision of an order of a learned Munsif allowing an application made under the provisions of Order 21 Rule 100 of the Code of Civil Procedure.
2. The opposite parties in these proceedings were the tenants of certain properties and these properties were sold at the instance of the zamindari in a rent execution case and the holdings were purchased by the zamindar himself. Thereafter the zamindar held these lands in khas. The opposite parties then applied to a Debt Settlement Board under Section 37A of the Bengal Agricultural Debtors Act and that application culminated in an award under which the opposite parties received back their properties on April 10, 1949. It was alleged that since that date the opposite parties had been in possession of the properties.
3. Afterwards another rent suit was instituted in respect of earlier rent and a decree was obtained and the property was put up for sale and purchased by an auction purchaser on October 26, 1949.
4. The Court gave the auction purchaser delivery of possession under Order 21 Rule 95 of the Code of Civil Procedure on July 8, 1950.
5. According to the opposite parties the auction purchaser did not on July 8, 1950 receive anything more than symbolic possession. But on July 18 the auction-purchaser physically dispossessed the opposite parties and took physical possession of the property.
6. The opposite parties who had been dispossess, ed applied under Order 21, Rule 100 of the Code of Civil Procedure. No written objection was filed. But it is quite clear from the case for the opposite parties and from the judgment of the learned Munsif that the allegation was that the opposite parties were dispossessed some ten days after delivery of possession had been given to the auction-purchaser by the Court under Order 21 Rule 95.
7. It was contended on behalf of the auction purchaser that as the execution proceedings had terminated by delivery of possession by the Court on July 18 no application under Order 21, Rule 100 would lie in respect of dispossession at some later date. The learned munsif however held that the dispossession complained of need not be a dispossession in the execution proceedings and may be subsequent to it. Accordingly the learned Munsif made an order in favour of the opposite parties.
8. The auction purchaser has preferred this petition and a preliminary objection has been taken that no revision lies. It has been pointed out that the auction purchaser, if he was dissatisfied with, the decision of the munsif, could have instituted a suit under Order 21 Rule 103 and as that remedy was available to him the Court cannot entertain this application in revision.
9. There is nothing in the actual terms of Section 115 of the Code which would prevent the Court hearing this application. Where the order sought to be revised is appealable then no revision lies. But this order was not appealable, although it could be challenged by way of a suit. There is therefore nothing in the plain terms of Section 115 of the Code of Civil Procedure which would bar this right of revision. This Court and other Courts constantly hear petitions for revision of orders made under Order 21 Rule 58 of the Code of Civil Procedure and decisions upon applications under Order 21 Rule 58 can be challenged by a suit under Order 21 Rule 63 within twelve months. If this Court has jurisdiction to hear revisions from decisions under Order 21 Rule 58 it clearly has the same jurisdiction to hear revisions from decisions in applications under Order 21 Rule 100. Reliance has been placed on a judgment of Sir George Rankin C. J, in which he held that the Court could not in the circumstances of that case interfere. A Court is not bound to interfere under Section 115 of the Code of Civil Procedure. It has a discretion, and the fact that there is an alternative remedy may influence a Court in the exercise of its discretion. It is one thing to say that the Court should not exercise its discretion in favour of the petitioner, but it is an entirely different thing to say that it cannot. The most that can be said here is that we should not exercise our discretion in favour of the petitioner, but that of course must depend on the facts of the case. We overrule therefore the preliminary objection that no revision lies.
10. The short point that has to be decided is whether Order 21, Rule 100 of the Code of Civil Procedure has any application where the dispossession complained of was not made in execution of the decree.
11. This case first came before a single Judge who pointed out that there are two single Judge decisions of this Court upon this question which are in conflict and he accordingly referred the case to a Division Bench.
12. The earlier of the two cases in 'Rajendra Kishore v. Asir Ulla', 65 Cal L Jour 416. In that case a learned single Judge held that though the dispossession took place after the disposal of the execution case, nevertheless an application under Order 21, Rule 100 lay.
13. In a recent case 'Hare Krishna v. Jamini Sundari Dassi', : AIR1950Cal555 , Mookerjee, J. took a contrary view and he held that dispossession under Order 21, Rule 100 must be in course of the execution proceedings and where the alleged dispossession was not in the course of such proceedings, but subsequent to the delivery of possession, an application under Order 21, Rule 100 would not lie.
14. In my judgment the view expressed by Mookerjee, J., is the correct view. Order 21, Rule 100 is part of the procedure relating to execution and Rule 100 provides a summary method of dealing with dispossession in the course of execution. It would be strange that a rule in an order relating to execution could have application after the termination of such execution. Order 21 deals with the procedure during execution and not with any procedure after execution has wholly terminated. (15) Further I think it is clear from the plain words of Rule 109 that it cannot apply after the 'execution proceedings have terminated by delivery of possession under Order 21, Rule 95. Rule '100 reads 'thus:
'(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.'
16. Where the decree is one for possession and the decree-holder has obtained possession through the Court, he can no longer be truly said to be the holder of a decree for possession. After being 'granted possession by the Court he is the person entitled to possession. The rule only applies to holders of decrees for possession, not to persons who were holders of a decree for possession who have obtained possession through the Court. Similarly it appears to me that where a property has been sold in execution the dispossession must be by the purchaser obtaining possession under his purchase. Where he has obtained possession under Order 21, Rule 95 he is no longer the auction-purchaser endeavouring to obtain possession. He is the person in possession who has a right to eject anybody 'on the property as a trespasser.
17. From the words of the rule I am satisfied that it cannot apply to dispossession after the termination of the execution proceedings.
18. As I have said, Rule 100 provides a summary procedure in execution and the application must be made to the Court executing the decree. Once however the Court executing the decree has delivered possession to the decree-holder or the auction-purchaser execution comes to an end and the Court is functus offlcio. Therefore an application to the Court under Order 21, Rule 100 must I think be made in the execution proceedings. Dispossession in the execution proceedings is one thing. Dispossession after the execution proceedings had terminated is an entirely different matter. If the view of the learned Munsiff is right then it appears to me that if this dispossession had taken place five or ten years later, nevertheless an application under Order 21, Rule 100 would lie. If it lies after a lapse of 10 days from the date on which the Court gave possession to the auction-purchaser, it must lie five or ten years after. That is a construction which cannot possibly be given to Order 21. Rule 100.
19. This is a case in which I think this Court should and must interfere in revision. I would therefore allow this petition, set aside the order of the learned Munsiff and dismiss the application.
20. The Rule is made absolute with costs here and below.
21. I agree.