ZAFFAR HUSSAIN MIRZA, J.--Respondent Mst. Nargis Bano who is the owner of a building situated at Wallington Street, Saddar, Karachi brought an ejectment application against one Moosaji as her tenant in one of the tenements of the building, which was allowed by the XIth Civil Judge and Rent Controller, Karachi vide order, dated 29-11-1975 as after the service of notice the said tenant put in appearance and thereafter remained absent. It appears that when the respondent filed execution proceedings the petitioner intervened and filed objections under Order XXI, rule 99 of the Code of Civil Procedure, in which she claimed that she was the lawful tenant in occupation of the premises and that the order of ejectment was obtained by fraud and mis--representation and according to the petitioner these objections were dismissed on 11-7-1975 in default of appearance by the Advocate for the petitioner. No appeal was admittedly filed by the petitioner against the dismissal of her objections, but a fresh application raising the same objection was filed which was, however, dismissed by the XIth Civil Judge and Rent Controller, Karachi by his order, dated 12-7-1975 on the preliminary legal point that similar objection petition had already been dismissed.
2. The petitioner then filed a suit for declaration and injunction before the same Court on the ground that the order, obtained by the respondent in the Rent case was based on fraud and misrepresentation. The learned Civil Judge rejected the plaint of the suit under Order VII, rule 11 of the Code of Civil Procedure by order, dated 5-9-1975 on the ground that the suit was not maintainable by virtue of the provisions of Order XXI, rule 103 of the Code of Civil Procedure and section 56 of the Specific Relief Act. The petitioner challenged this order before the appellate Court but his appeal was dismissed by the IVth Additional District Judge, Karachi on 9-9-1975. Finally the petitioner sought to challenge the orders passed by the Courts below in revisional jurisdiction but his revision also fail vide order of the learned Single Judge of Sind High Court, dated 3-4-1984. The view taken by the learned Judge in the High Court was summarised in the following observations in the judgment:- "Mr. Abdul Majeed Khan has conceded that the objections to the execution application were covered by rule 100 of Order XXI, C.P.C. Now the objections under rule 100 are disposed of by an executing Court under rule 101, which was done by the executing Court by his order in the execution proceedings. The Courts below were, therefore, justified in holding that separate suit in respect of the disputed pending in the execution proceeding was barred under rule 103, C.P.C. No exception can be taken to this view of the learned Additional District Judge. The Revision Application is, therefore, dismissed with costs."
3. The petitioner has brought this petition for special leave to appeal against the judgment of the High Court and it is contended by the learned counsel for the petitioners, firstly that the bar contained in Order XXI, rule 103 of the Code of Civil Procedure was not attracted in the circumstances of this case as the suit was based on fraud and secondly that the execution proceedings in this case in which the objections were filed by the petitioner were under section 17 of the Sind Urban Rent Restriction Ordinance, 1959 and consequently the provisions of the Code of Civil Procedure were not applicable. We find no substance in either of these contentions. Order XXX, rule 103 of the Code of Civil Procedure as amended by Ordinance XII of 1979 reads as under:---- "Certain orders conclusive and suit barred. -- 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."
4. On a plain reading of the aforesaid provision the right claimed by the petitioner as a tenant in the execution proceedings was to be adjudicated upon and determined by the Court in such proceedings and no separate suit was competent on any such question. If therefore, the Code of Civil Procedure was applicable manifestly the suit filed by the petitioner was barred under the aforesaid provision of law. The petitioner's remedy lay in filing an appeal from the order of the Civil Court dismissing her objections as such an order is now the effect of a decree by virtue of section 2(2) of the Code of Civil Procedure, therefore, an appeal would lie therefrom under section 96 of the Code of Civil Procedure. Admittedly no such appeal was filed by the petitioner. As to the second contention of the learned counsel it may first be pointed out that the petitioner had conceded before the High Court that her objections were covered by Order XXI, rule 100 of the Code of Civil Procedure and the High Court proceeded on the basis of this concession. The petitioner cannot be allowed to probate and reprobate by raising the contention that the Code of Civil Procedure is not applicable. However, section 17 of the Urban Rent Restriction Ordinance clearly lays down that an order passed by the Rent Controller shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. Manifestly, therefore, the execution proceedings in respect of the order of eviction were filed before the Civil Court and since such order had the effect of a decree passed under the Code of Civil Procedure the provisions of Order XXI of the Code of Civil Procedure were attracted.
For the foregoing reasons we find no merit in this petition which is accordingly dismissed.