Sheikh GHULAM NABI ETC. vs EJAZ GHANI AND Other

ORDER

M. S. H. QURESHI, J.-The appellants had resisted the execution of an order of ejectment passed in favour of Mst. Nawab Bibi, the predecessor-in---interest of the present respondents, against the Church of Scotland Mission Girls High School: The appellants' case was that they were heirs of Sh.

Allah Dad, the previous owner of the property, who had died in 1934 and that they occupied the property in 1957, when the said School shifted to another premises. An application was accordingly moved on behalf of the respondents under Order XXI, rule 97, C. P. C. Which was allowed on 16-1- 1969 by the executing Court which rejected the appellants' objections. The appellants came up in revision before the High Court but the same was dismissed on 23-6-1972 for the short reason that "an alternate remedy by way of a suit under Order XX1, rule 103 was open to the petitioner". Leave to appeal was granted by this Court on 23-11-1972 to consider whether in view of the amendment in Order XXI, rule 103, C. P. C. Brought about on 14-4-1972 by the Law Reforms Ordinance (XII of 1972), whereby the right to institute a separate suit had been taken away, the High Court's order was tenable in law.

2. Under the old rule 103 of Order XXI, C. P. C., any party not being a judgment-debtor against whom an order is made under rule 98, 99 or 101 may institute a suit to establish the right which he claimed to the present possession of the property but, subject to the result of such suit, the order was conclusive. Under the rule, as amended by Law Reforms Ordi--nance, 1972, "all questions arising as to title, right or interest in, or possession of immovable property between an applicant under rule 97 and the opposite --party, or between an applicant under rule 100 and the opposite-party, shall be adjudicated upon and determined by the Court, and no separate suit shall lie for the determination of any such matter". Under the amended rule, therefore, the party aggrieved by an order could not institute a suit. Such party could, however, bring an appeal under clause (ii) of Order XLIII, rule 1, C. P.

C. This clause, too, was introduced by the Law Reforms Ordinance.

3. On 23-6-1972 when the High Court made the order, the new rule 103 had already come into force and as such the view taken by the High Court that the appellants had an alternative remedy by way of a suit under Order XXI, rule 103 was not in conformity with that rule. We, therefore, allow the appeal and remit the matter back to the High Court to decide the appellants' revision in accordance with law. There shall be no order as to costs.