Roe, J.:— In this case the petitioner before us is a decree-holder. The opposite party is a claimant to property attached in execution of a decree to which he was not a party. Proceedings were instituted by the latter under O. 21, R. 100. On the day fixed for trial the opposite party was not present in Court. His claim was therefore rejected for default. Against the order rejecting his claim he made an application for re hearing under O. 9, R. 9. The learned Munsif upon going into the merits of the case considered that good cause had been shown for his absence at the time of the hearing. He therefore ordered the case to be restored to the file. Against that order an application has been made for the exercise of the powers of this Court under Section 115 of the CPC.
2. We do not consider it necessary to consider the whole trend of case law as affecting generally the provisions of O. 21. The only point with which we are concerned is whether a party not bound by a decree can under O. 9, R. 9, obtain a rehearing of a claim made by him under O. 21, R. 100. In the case of Diljan Mihha Bibi v. Hemanta Kumar Roy(1) this point was directly decided in favour of the opposite party now before us. In Bharat Chandra Nath v. Yasin Sarkar(2) the point was not directly decided by the Court but the general conclusion of their Lordships was that if such a claimant has no redress under O. 9, R. 9, he has it under S. 151 of the Code. These decisions were subsequent to the decision in Hari Charan Ghosh v. Manmatha Nath Sen(3), and in both of them the effect of the decision in Hari Gharan's case was discussed. The decision in the case of Hari Charan would seem to us to be conclusively against the opposite party before us, and we are not in sympathy with the attempt of the learned Subordinate Judge to distinguish it on the ground that case dealt with O. 9, R. 13, and not with O. 9, R. 9. The point which we have to consider is whether the decision of the Judicial Committee in the case of Thakur Prasad v. Fakir Ullah(4) precludes an application of the ordinary procedure in suits to proceedings to which a party not bound by the decree has instituted a proceeding for release of property attached in execution of the decree. We can find nothing in that decision to support the view that such a limitation exists. The decision was merely that the provisions of S. 647, of the old Code did not apply to applications for execution. It does not appear to us that the case now before us can be in any sense regarded as an application for execution. A claimant under R. 100 is in no way affected by the execution of the decree. The decree might and should be executed without infringing the claimant's rights.
3. In my view an application under R. 100 is in the nature of a summary suit, and in that view the provisions of the Code of Civil Procedure should apply. I am therefore of opinion that the decision in Diljan Mihha Bibi v. Hemanta Kumar Roy, supported by the decision in Subbiah Naicker v. Ramanathan Chettiar(5), is a correct interpretation of the law.
4. I would reject this application for revision with costs, hearing, fee two gold mohurs. We are indebted to Mr. Atul Krishna Roy for very careful analysis of the cases dealing with the point before us.
5. Jwala Prasad, J.:— I agree to the order proposed in this case.
V.S/R.K
6. Application rejected.