1. This is an execution second appeal which raises an interesting little point. A suit was brought in the year 1931 by one Zahir-uddin Khan, purporting to sue on behalf of Bari Tala, against Bahadur Khan for possession of certain premises and for rent. On 25th March, 1935 the plaintiff in that suit obtained a decree for possession and Zahir-uddin in fact obtained possession under that decree. He did not, however, manage to retain the fruits of his victory because on 28th September, 1936 the decree was set aside on appeal and the suit was dismissed. In the result, therefore, the suit failed. This gave rise to the position which is intended to be covered by Section 144 of the CPC, and on 16th March, 1937 the successful appellant, Bahdur Khan, applied under that section for restitution to him of the possession of which he had been deprived under the decree that had been set aside. It was held that he was entitled to get the property back and an order was made accordingly. This order the local amin went to carry out on 19th October, 1937. But he was met by a gentleman named Abdul Bashid—who is in fact Zahir-uddin Khan's brother—claiming that the house belonged to him. In this way, the amin was prevented from getting possession. The next step was that on 25th October, 1937 Bahadur Khan moved the Court under C. 21, R. 97 of Sch. 1 of the CPC. That rule provides thus:

(1) Where the holder of a decree for the possession of Immovable property…..is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

As a matter of fact, this application came to nothing because on 4th January, 1938 it was dismissed for want of prosecution and at the same time the application of 16th March, 1937 was also dismissed for the same reason. On the same day however that is on 4th January, 1938, Bahadur Khan launched a fresh application for restitution under Section 144 of the CPC, making respondents to that application both Zahir-ud-din and Abdul Rashid. On 1st March an order was made upon this which, in my opinion, amounted to an order for possession. What was actually said was that the amin should go to the spot. What was intended obviously was that the amin should go to the spot and take possession. On 21st March the amin went and he was again prevented from obtaining possession by Abdul Rashid. On 29th March, 1938 a second application was, accordingly, made by Bahadur Khan to the Munsif under O. 21, R. 97 of the CPC, “complaining of such resistance or obstruction” and it is upon that application that the orders now in appeal have been made. I have actually seen that application and though it is an informal document putting forward a complaint to the Munsif it is none the less, in my opinion, an “application” within the meaning of R. 97 and, indeed, it has been so treated by the Court. I find nothing to complain of in this. It came before the Munsif and to put the matter briefly, the Munsif dismissed it upon the ground that it was “time barred.” He says:

I hold therefore that the application of the decree-holder Bahadur Khan to take action against Abdul Rashid Khan to prevent his resistance in delivery of possession is time-barred. Bahadur Khan will therefore not get any remedy against Abdul Rashid in this proceeding…. The application of Bahadur Khan for action against Abdul Rashid Khan is dismissed….

2. It is perfectly true that in the course of his judgment the Munsif discussed all the circumstances and committed himself to a number of expressions of opinion on the facts. He expressed the opinion that Zahir-ud-din and Abdul Rashid were brothers and that they were each of them a mutwalli of a wakf of which Zahir-ud-din was the managing member. But it is equally clear that the ground upon which the Munsif disposed of the application was that it was time-barred and what he has said in other respects in his judgment is in my view, merely obiter. In due course this was taken on appeal to the Additional Civil Judge of Azamgarh and before him the point was taken that no appeal lay. I will in a moment discuss the reasons advanced why no appeal lay. It is sufficient however for the present for me to say that the learned Additional Civil Judge dismissed the appeal upon that ground. He held:

…. Order 21, R. 103 is absolutely dear that no appeal lies from an order on application under O. 21, R. 97. In these circumstances I dismiss the appeal with costs.

3. That has come on second appeal to me and again the point is taken by the respondent that no second appeal lies, because, he says, that if no first appeal lay, then a fortiori no second appeal would lie. It seems to me that the only question which we have to deal with at present is whether a second appeal lies which involves the question whether a first appeal lies. I think it may be conceded that if a first appeal lay then a second appeal would lie and accordingly the question reduces itself to this, namely whether the Additional Civil Judge of Azamgarh was right in holding that no appeal lay. Now, the argument advanced is this, indeed, the learned Additional Civil Judge puts it very succinctly when he says that no appeal lies from an order on an application under O. 21, R. 97. The reason why it is said that no appeal lies in those circumstances is that R. 103 has provided—I shall refer to the language of it in a moment—that the party who is disappointed, I am using general language, by a result of an application under R. 97 should have a remedy by suit and accordingly, it has been held many times, on the principle of expressio unius exclusio alterius, that an express remedy having been provided the ordinary remedy by appeal is excluded. Before attempting to apply that to this case it is necessary for me to read these rules somewhat carefully. I have already set out R. 97. That is followed by R. 98 which says:

Where the Count is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of the property..

4. Then comes R. 99 which provides for the converse case. It says this:

Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment, debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.

5. And finally by R. 101 it is provided:

Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.

6. And then follows R. 103 which provides the remedy for the party against whom a decision under the foregoing rules is made. It is in these terms which are very relevant to be observed for the present purpose:

Any party not being a judgment debtor against whom an order is made under R. 98, R. 99 or R. 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.

7. That is what is said to preclude the right of appeal in this case, namely that there has already been an order dismissing the application and that accordingly the only remedy is by bringing a suit and not by appeal. Now, the whole foundation of that argument must rest upon the basis that there has been an order in this case under either R. 98, R. 99 or R. 101. The application was dismissed and accordingly, if any rule is to apply it can only be R. 99. It is very important to observe what it is exactly that R. 98 and 99 give the Court jurisdiction to do. R. 98 gives the Court jurisdiction to give the applicant, who finds it difficult to get possession, relief on a specified ground, namely, that the Court is first satisfied that the opposition was with, out just cause. It is only upon that ground that the jurisdiction to make an order under R. 98 applies at all and no order could be made under R. 98 except upon the footing that the Court has found that the obstruction was an unjustified one. In the same way as regards R. 99 the only jurisdiction that the Court has under that rule to dismiss the application is upon being first satisfied that the resistance or obstruction was to put it shortly justified. Accordingly, the jurisdiction under those two rules is very strictly defined and is extremely limited. The Court can only make an order under those rules upon being satisfied of the facts which the rules require it to be satisfied of. Now, what has happened in the present case? The application was dismissed by the Munsif upon the ground that it was time-barred. It was not dismissed by the Munsif upon the ground that he was satisfied that Abdul Rashid was a person claiming in good faith to be in possession of the property. On the contrary, so far as the obiter dicta go, he was far from satisfied that Abdul Rashid was claiming in good faith. The truth of the matter is that he dismissed the application, not upon any ground referred to in R. 99, but upon the technical ground that under Section 3 of the Lim. Act, he was bound by statute to dismiss it because it was time-barred. How therefore can it be said in the words of R. 103 that “an order is made under R. 98, R. 99 or R. 101?” It is perfectly true that an order was made. It is equally true that the order made arose upon an application under O. 21, R. 97. But it is not true, in my judgment, that the order which was made was made “under” either R. 98 or R. 99. It was plainly made under the Limitation Act and nothing else.

8. For these reasons I think it impossible to say in a case in which an application under O. 21, R. 97 has been dismissed as being time-barred, that the order dismissing it is an order made under R. 98, R. 99 or R. 101. If I am right in so thinking, then O. 21, R. 103 affords no obstacle to an appeal. It does not apply. The position is therefore that this application was finally dismissed by the Munsif under the Limitation Act. That was, in my view, a decree within the meaning of Section 2(2) of the CPC, and it was appealable accordingly. I think therefore that the learned Civil Judge of Azamgarh is wrong when he says that “O. 21, R. 103 is absolutely clear that no appeal lies from an order on an application under O. 21, R. 97”. Indeed, by those words he has himself expressed the very ground upon which I disagree with him. What R. 103 prevents is an appeal, not from “an order on an application under O. 21, R. 97,” but from “an order… under R. 98, R. 99 or R. 101.” That, of course, is a very different thing.

9. In my view, an appeal from the Munsif's order did lie and accordingly the result of the present appeal must be that it will be allowed, the order dismissing the first appeal will be set aside and the case will now be sent back to the Additional Civil Judge of Azamgarh for him to hear the first appeal. The appellant has succeeded in this Court and must be entitled to his costs of this appeal. The appellant will be refunded the court-fee of this Appeal.

D.S/R.K

10. Appeal allowed.