1. In course of execution proceedings, the present applicant brought a Claim Case No. 31 of 1930, under Order 21, Rule 58, Civil P.C. That case was dismissed for default on 13th December 1930: vide Order No. 10 of the Order-sheet. Thereafter the attached property was sold in auction purchased by the decree-holder on 19th February 1931. The sale was confirmed on 6th October 1931. Then on 17th November 1931 on decree-holder's prayer process for delivery of possession was issued and possession was duly delivered. Thereupon the present applicant who was the claimant in the Claim Case No. 31 of 1930 has presented an application under Order 21, Rule 100 complaining about dispossession regarding his eight annas share in the disputed land. The opposite party decree-holder has resisted this application on a preliminary point, viz., the Claim Case of the applicant having been dismissed for default, he is precluded from raising any objection under Order 21, Rule 100 on the principles of res judicata. The learned pleader for the decree-holder has urged that on the dismissal of a Claim case the only remedy open to the claimant is in the institution of a Regular Suit as provided in Order 21, Rule 63, Civil P.C., and that the scope of inquiry under Order 21, Rule 100 is same as one under Order 21, Rule 58. It has been further contended that if the applicant (Claimant) is permitted to apply under Order 21, Rule 100, Civil P.C., having once failed in his application under Order 21, Rule 58, Civil P.C., and to obtain a favourable order, he would thereby gain his end which he could not otherwise than by institution of a suit contemplated in Order 21, Rule 63 C.P.C. These contentions appear to me to have force in them. On the other hand I find nothing in the Civil Procedure Code which precludes an application under Order 21, Rule 100 by an unsuccessful applicant in a case under Order 21, Rule 58. In my opinion, having regard to the provisions of Order 21, Rule 63, Civil P.C., which give a conditional finality to an order in a Claim Case, the applicant is precluded from agitating the identical question in an application under Order 21, Rule 100, Civil P.C. But the Civil Procedure Code being silent on the point at issue and the parties to the proceeding having failed to refer to any reported ruling on the point, I have not been able to come to a definite conclusion on the point. In the circumstances I would refer under Order 46, Rule 1, Civil P.C., the following question for decision by the Hon'ble High Court. Is an unsuccessful applicant in a case under Order 21, Rule 58, Civil P.C., competent to apply under Order 21, Rule 100, Civil P.C.?
2. Judgment - This is a Reference under Order 46, Rule 1, Civil P.C., made by the Munsif of Meherpur in connexion with an application under Order 21, Rule 100 of the Code, in Miscellaneous Case No. 519 of 1931, pending in his Court. The facts giving rise to the Reference have been fully set out in the letter of reference addressed to this Court and it is not necessary for us to refer to them again here. In view of the principle underlying the decision of this Court in the case of Jugal Kishore v. Bejoy Krishna (1912) 15 IC 683 the contention of the decree-holder that after the dismissal of a claim case under Clause 21, Rule 58, the only remedy open to the claimant was in the institution of a regular suit as provided in Order 21, Rule 63 of the Code and the further contention of the decree-holder, that the scope of (inquiry under Order 21, Rule 100 was the same las the inquiry under Order 21, Rule 58 appears to us to be correct. In our opinion, the question referred to this Court for consideration, viz., whether an unsuccessful applicant in a case under Order 21, Rule 58, Civil P.C., is competent to apply under Order 21, Rule 100, must be answered in the negative. The Reference is disposed of in the manner above indicated. There will be no order as to costs in this Reference.