1. This is an application under Order VII, rule 11, C.P.C. Filed by the defendant No.1, seeking rejection of the plaint on the ground that it does not disclose Any cause of action. Besides the suit is also claimed to be hit by limitation and barred under Order Y_XI, rule 1.03, C.P.C.
2. The facts, as they emerge from a reading of, the plaint and the documents filed with it, comprise of the defendant No.1 in the suit filing an earlier suit namely No.181 of 1986 before the learned XV111th Civil Judge, III Class, Karachi for recovery of possession under Section 9 of the Specific Relief Act against the defendants Nos. 2 to 5 (in this Suit). The suit of defendantNo.1, Ibrahim, was decreed against the defendants Nos. 2 to 5, who remained ex parte in such suit. Execution was applied for and during the course of its pendency the plaintiff-decree-holder, in the referred suit, complaining through an application that the defendants-judgment-debtors were resisting execution police aid was allowed for enforcement of the decree. This was followed by the -OXXI, R. 103-' Bar of suit --- Essentials.'plaintiff (in the.Present suit filing -an application under Order XXI, rule 97 C PC claiming to be in possession of the disputed property and urging independent title in support of such possession. The learned Executing Court examined evidence on the application under Order XXI, rule 97, which also included the deposition of one Baboo, late husband of the present plaintiff. A quaint finding was, however, arrived at as a consequence. In the first place, it was held that the application under Order XXI, rule 97, C.P.C. Was not maintainable because under that provision only a decree-holder could apply if he was confronted with obstruction in execution of the decree by a third party and since in the case before the learned Executing Court, the application hademanated from a third party itself, it was not competent. Irrespective of the question whether this finding was right or wrong, the Court simultaneously proceeded to examine merits but that too in a slipshod and totally irregular manner. It referred to a notice by Ibrahim (defendant No.1 here and decreeholder before the Court) to Babu, deceased husband of the present plaintiff, issued in 1967, cautioning the latter not to raise constructions on the plot, subject-matter to the suit before the learned Civil Judge from which Ibrahim allegedly had been uprooted. This notice, it was pointedly observiA, was replied to by the same learned Advocate namely, Mr. Nooruddin N. Ranizan, who was representing the defendants in the suit (suggestive of collusion). The reply itself was that no such construction was being raised on the portionof the property whereupon the plaintiff in that suit had laid claim. It was and is the case from the side of Ibrahim, who himself has died during the course of proceedings in this suit, that this allegedly, collusive and fraudulant reply lulled the plaintiff in the said suit into inaction. At the same time, evidently, the plaintiff in the present suit applied to and became a Member of Usmania Cooperative Housing Society Limited, subsequently obtaining a plot of land within which was, apparently, comprised also the disputed area in the suit under reference. Assuming on such facts that the objector in execution (present plaintiff here) was in possession she or her husband or both could have been necessary parties in the previous suit under section 9 of the Specific Relief Act and because none was joined there the decree may have suffered from a basic defect. It has, however, been pointed out to me by Mr. Javed Raza, appearing for defendant No.1 here (plaintiff in the previous suit) that the present plaintiff in fact has never constructed upon the portion of land which was in dispute in the previous suit and further that it is doubtful that she is even in possession of such an area. If the situation is the one last mentioned all this controversy could be no more than much ado about nothing. Be that as it may, reverting,,to the finding of the learned Executing Court that Court, in spite of declaring the application under Order XXI, rule 97 to be non-- maintainable, proceeded -further, on re-counting some of the above details, to hold that the plaintiff in the present suit, even though she was not joined as party in the previous one, merely because of supposed in-action on her part could not resist the decree. The application was, therefore, dismissed. Nothing was said about the fact that if she was a party necessary to the proceeding, it was, in the first instance, a duty of the parties already in the suit and then of the Court itself to implead such a necessary party.
3. Aggrieved and dissatisfied, the present plaintiff appealed. However, such appeal was dealt with even in a less ceremonious manner by the learned Additional District Judge who heard it. It is a remarkable order that he passed, In the first place in spite of a clear provision in Order XLIII, rule 1(ii) the learned Judge found that the appeal placed before him was not competent and treated it as a revision. Then he proceeded- to say that the application under Order YOU, rule 97, C.P.C. Was non- maintainable for the same reasons which had weighed with the learned Executing Court. Finally, a stamp of affirmation was affixed as to merits of the controversy even though at neither of the two levels, the questions of validity of title of the present plaintiff was considered, presumably, because the suit itself being under section 9 of the Specific Relief Act, considerations of title could normally have been irrelevent. Yet, findings purely on the basis of alleged conduct were given totally rejecting the objection of the present plaintiff, figuring as intervenor before the Executing Court and the Court which heard the appeal from the order in execution. These facts have, in turn, given rise to this suit.
4. The contention as to non-maintainability of the suit from the side of the defendant No.1 queerly is supported also by the learned counsel for the defendants Nos.2 to 5, who has urged that questions decided in terms of rule 103 of Order XXI, C.P.C., cannot be re-agitated by way of a separate suit, the only remedy available to the aggrieved person lying in taking the matter up-awards from the Executing Court. That last having been done, this suit even according to defendants Nos. 2 to 5 is barred. Irrespective of the validity of the objection it is the identity of defence of these parties which is to be noted since the defendant No.1 was the plaintiff in the previous suit and the defendants Nos.2 to 5 were the only defendants against whom alone the decree for possession was passed in such previous.Suit, those defendants having been ex parte in the referred earlier suit and the only resistance there coming from the objector or the plaintiff in this suit. The implications may not too difficult to fathom. Reverting to the discussion as to competence, pursuant to the substitution of rule 103 in Order XXI, C.P.C. In consequence of the Law Reforms Ordinance, XII of 1972, the contention is nonetheless, on principle, correct. Where there has been a determination of the controversy raised, competently under Order XXI, rule 97, C.P.C. And duly adjudicated upon, a separate suit questioning such a finding in the face of rule 103 of Order XXI, C.P.C. Would not lie. However, where the finding is that the matter did not arise under Order XXI, rule 97 at all and that the application brought that provision was itself non-maintainable the resulting finding cannot be one relevant to rule 103 of Order XXI, C.P.C. And the aggrieved person may file a suit in the same manner as if such application under Order XXI, rule 97, C.P.C. Had not been preferred. This is so as either the application or the suit may be barred but not both.
5. Correspondingly, where an Executing Court or a Court sitting higher in the same hierarchy finds that the matter is not covered by Order XXI rule 97, C.P.C. It should hold off its hands from entering merits into because any observations on merits, if recorded, may have ramifications touching upon the rights of the aggrieved person to file and pursue an appropriate suit, Sitting in an Executing Court or in a higher forum against the findings of the former, where such occasion arises, it may be said that the proceeding is incompetent but there the matter should stop. If, however, the proceeding is found competent merits can be touched. The Court cannot do both i.e. Hold, the proceeding to be non-maintainable as well as devoid of merit. Thus, in circumstances where an Executing Court, on the one hand, finds that the proceeding under Order XXI, rule 97 is not competent but at the same time goes on to tackle merits of the controversy, the order is either one duly determining maintainability or one properly touching upon merits and, if the former it is not an order under rule 103 of Order XXI, C.P.C. At all, and if so no bar for an appropriate suit in ordinary course as the present. One is spelled out. If on the other hand, the finding on merits has due warrant the determination as to non-maintainability has to be bad.
6. Now may be considered the question, whether or not the application under order XXI, rule 97, C.P.C.
7. Filed bythe plaintiff (in this suit) before the Executing Court was competent. Indeed, in view of the finality which the orders in execution at the initial and higher levels have attained one way out may well be to say that since at both such levels the application under Order XXI, rule 97, C.P.C. Was held to be barred the matter stands concluded on that score and this suit is competent. Yet, in the face of the patent irregularities in the referred proceedings, including treatment of and otherwise proper appeal as a mere revision, that amounts to bagging the question. Adequate treatment, therefore, of the application, under Order XXI, rule 97, C.P.C. May be in place. Such an application, as a rule, may be filed by the holder of a-decree or 'purchaser in execution if either of them is resisted or obstructed by any person in obtaining possession. On presentation of an application under Order XXI, rule 97(l), C.P.C. The Executing Court is required to fix a day for investigating the matter and to summon the party against whom the application is made to appear and answer the application. Rule 98 of Order XXI, C.P.C., which is consequential, envisages relief against the judgment-debtor or against "some other person", acting at the instigation of the judgment-debtor, if the Court is satisfied that the resistance or obstruction was occasioned without just cause, the relief consisting of a direction to put the applicant in possession and, where the resistance or obstruction still continues, an order against the judgment-debtor or other person acting at his instigation directing such offender to be detained in civil prison for a term which may extend to thrity days. An application of the decree-holder under rule 97 is to be dismissed under rule 99 of the same order when right to possess is claimed and proved by any person in good faith on his own account or on account of some person other than the judgment-debtor. Where an independant claimant covered by rule 99 is dispossessed, his claim is to be investigated under rule 100 and his possession is to be restored under the succeeding rule 101 of the same Order. Benefit of rules 99 to 101 is, however, not available pursuant to rule 102 to any person to whom the judgment- debtor has transferred the property or its possession after the institution of the suit. Rule 103 in Order XXI, as substituted by Ordinance XII of 1972, is the residuary rule and postulates that all questions as to title, right or interest in or possession of immovable property, covered by rules 97 and 100 aforesaid shall be adjudicated upon and determined by the Executing Court and no separate suit shall lie. It is thus, on the language of the rule, correct that Order XXI, rule 97, C.P.C.
8. Contemplates the making of an application by the decree-holder, or ' where relevant, by a purchaser. However, there can and may be circumstances where, upon an execution application being preferred, as attempt is made to execute the decree against a person who, having rights of his own was neither himself party to nor claims under a party to the decree and yet the decree- holder, for reasons of his own, prefers not to make the Executing Court privy to the actual prevalent facts. Would such a rightful claimant, an otherwise' honest dissenter, have no remedy? More precisely, question is whether in the face of the rules 97 and 98 in Order XXI, C.P.C. The Court is expected to throw out such an application. I am not unaware that in Ali Hassan v. Rafiq-ud-Din, PLD 1977 Lah. 418, Aftab Hussain, J. Dessented from the judgment in the case of Sahibun Nisa , v.
9. Mehmooda Bcgurn, PLD 1959 Lah. 511, an enunciation of B.Z. Kaikaus, J., observing that objections in terms of Order Y-XI, rules 99 and 101, C.P.C. May arise only in the circumstances contemplated in those provisions, that such proceedings in anticipation by third parties before submission of an execution application and merely following upon the decree or upon execution application being preferred but without any plausible threat of dispossession in absence of any process having yet been sought were not permissible under law. To this extent the rule only distinguishing the RATIO in the earlier case is substantially correct and has not been shown to be overruled. However, the case of Ali Hassan goes beyond and even countenances the extreme, envisioning that whatever be the nature and content of third party interest, the party affected must await physical eviction before seeking restoration in terms of rules 99 to 100 of Order XXT, dismissing the resulting hardship, on the state of law calculated to alleviate the miseries of decree-holder which, according to a well-known observation of the Privy Council, in the sub-continent, begin with the passage of the decree itself. In this view, inherent powers of the Executing Court do not extend beyond the specifics expressly spelled out by law. While B.Z. Kaikaus, J., in deciding Re: Sahibun Nisa, was moved by obvious hardships to persons rightfully in possession, if the letter of law was followed and only upon effective dispossession the Court could he approached in accordance with rule 100 of Order XXI and opined that it would be totally unacceptable that the -Court should first allow an illegality to be perpetrated and then intervene, Aftab Hussain, J., thus was moved enormously by the misuse of the dictum in the case of Sahibun Nisa at the hands of unscrupulous litigants, invariably circumventing, delaying and even defeating executions by pre-empting execution proceedings on the basis of routinely spurious claims. The approach of either of the learned . Judges was based on compelling circumstances, each having weight in its own sphere. However, what seems to have been overlooked in examining the opinion in Re Sahibun Nisa was the fundamental observation of Kaikaus, J., that in all such matters of pre-emptive recourse, an Executing Court was always to decide, even at the preliminary stage, whether to entertain such an invocation at all for which, according to Kaikaus, J., a discretion vested in it to be obviously exercised judicially in each case.
10. Each of these views thus is capable of distortion and misapplication and in following either opinion, subject to current Supreme Court dicta, as will be discussed below, a Court has to be duly cautious, always being mindful of justice of a case and the technical para-meters. Spelled out in the law. The case of ALI HASSAN not then being in the field, Dorab Patel, J., in Dad Shah v. Mohd. Fazal PLD 1971 Quetta 69, referring to Re: Sahibun Nisa said as much.
11. As regards the finding of total ouster in Re: Ali Hassan even Aftab Hussain, J., does not seem to opine that a proceeding, essentially in terms of Order XXT, rule 97 and duly arising upon execution would be barred simply because it is initiated by a third party actually, independently and bona fide in possession in the face of imminent dispossession and not by the decree-holder in the manner prescribed by rule 97 of Order XXI, C.P.C. Actually, Order Y_XI, rule 97, C.P.C. Was not examined by the learned Judge, as such, the matter having been pickedup from the stage of rule 99 in the Order, which addresses the result and not the cause. Surely when, on making of reports, such as sprung up in the execution proceeding referred herein, orders to execute through police aid are recorded, there can hardly be anyresistance from a genuine third party as contemplated in rule 97 ibid. In the face of police force and the entire provisions of Order XXI, rules 97 to 99 would be rendered meaningless at the instance of a decree-holder, who in suppression of third party bona fide interests, known or presumably known to him, puts the machinery of the Court in motion, obtaining orders for breaking open locks and police aid, the Court always labouring under the impression that it is the judgment-debtor or someone at his instance whom its agencies are ensuring to evict. The decree-holder should never thus come to raise a grievance against even a genuine third party in such a situation. The remedy of the aggrieved, if any, would then be in terms of rule 100 of Order XXI alone upon physical dispossession, however, valid, effective and honest may have been the right, title or interest of the third party involved. The rule laid down by the Supreme Court in Muhammad Sohrab Ali v. Bazlur Rehman 1968 SCMR 341, is that in cases where a person claims property in his own right and resists taking over of possession in execution of a decree obtained in suit to which he was not a party, the execution application merits dismissal. In Mohiuddin Molla v. Province of East Pakistan PLD 1962 SC 119, regarding various rules of pure procedure incorporated in the Code, Kaikaus, J., who spoke for the Supreme Court said: "Order XXXVIII, rule 5 should be regarded as a provision which recognises a power rather than a provision which confers a power. The Civil Procedure Code, generally speaking does not create new powers but regulates the exercise of powers already possessed by the Court."
12. It is in the light of this observation that Order XXI, rule 97, C.P.C. Is to be viewed. The provision recognises the duty of the Court to enquire into genuine third party interests of an independent character. While an execution is pending and the process has been issued but not enforced yet or when during the pendency of execution process is about to be issued a claimant satisfying the elements of rules 97 and 98 in Order XXI may, therefore, approach the Court, maintaining that he in his own independent and bona fide right is resisting or interested in resisting execution and claims an inquiry. This is precisely what the decree-holder would have been constrained to intimate to the Court if obvious third party interests, independent and bona fide *in themselves, had come to be confronted and even brought on record. The two situations being thus, in essence identical and the constraints in rule 97 of Order XXI being purely technical and essentially procedural, the Court may then accord a hearing to the contestants with or without recording evidence, as the exigencies in a given case may dictate and, if equities so require, bypass the technicalities of Order XXI, rule 97, C.P.C., exercising discretion, if just an lawful, to entertain the caveat, if not, exercising an equally potent prerogative to throw it out. It is well-settled that in the domain of procedure, a distinguished from substantive dispensations, all procedure is permissible which is not clearly prohibited by law.
13. Further, in equivocal situations the rule of construction, more often than not, is that it is the spirit and intention behind a statute and not always its letter which has to be given affect to.
14. Indeed in Khurshid Begum v. Ghulam Kubra, 1982 SCMR 90, the conflicting views of Kaikaus, J., and Aftab Hussain, J., in the cited cases cam up for consideration. Shafiur Rehman, J., who authored the jud&pnent of th Supreme Court referring to Narsingdas v. Mangal Dubey, ILR 5 All. 163 Mohiuddin Molla v. The Province of the East Pakistan, PLD 1962 SC 119 Muhammad Sorab Ali v. Bazlur Rahman Mia, 1968 SCMR 341, Abdus Salan v. Sharif Ahmad, -1971 SCMR 596 and Messrs Service Medical and Genera Stores v. Haji Rashiduddin, 1971 SCMIZ 591 preferred the enunciation o Kaikaus, J., but because the objector has failed to plead or prove a right independent of the judgment-debtor refused to accord relief. It will, however be erroneous to assume that in Kursheed Begum v. Ghulam Kubra the Supreme Court has totally overruled the case of Ali Hassan. The correct position would appear to be that while the view of Aftab Hussain, J., has bee substantially deviated from, Re: Ali Hassan has not been totally overrule though, at the same time, the opinion of Kaikaus, J., in the matter of Sahibu Nisa has been fully endorsed. The point becomes clearer when the conclusion of the Supreme Court in Khursheed Begum v. Ghulam Kubra is noted, which is in the following words:- "12. It follows consistently from these decisions of this Court that a executing Court has the power to entertain and adjudicate a objection petition riled by persons not claiming through the judgment debtor, even before their physical dispossession from the property This has to be distinguished from the right conferred by law on such party to prefer an objection without resisting the execution or without being dispossessed from the property. What remains to be seen is whether this principle is applicable to the facts of this case."
15. In identical circumstances, the Supreme Court in Kulsoorn Bai v Nargis Bano, 1985 SCMR 1275, without noting the case of Khursheed Begum ibid, impliedly found such kind of third party objections not to be incompetent but because disallowance thereof was not questioned in appeal, declared subsequent suit to be barred by Order XXT, rule 103, C.P.C..
16. Another Supreme Court decision on the point is Salahuddin v. Zaheeruddin, PLD 1988 S.C. 221, which, in turn, invokes the rule in Rahmatullah v. Ali Muhammad, 1983 SCMR 1064. This case, which again skips mention of Re: Khursheed Begum has been cited to urge that it affirms the decision in the case of Ali Hassan in preference to that in the matter of Sahibun Nisa. Litigation there had commenced with an ejectment case against appellant's brother Alauddin which was allowed, the order successively being affirmed in appeal and in SAO No. 372 of 1978 by the High Court. At that stage, the appellant appeared on the scene and filed a suit claiming to be himself in possession and seeking interim relief. While examining the application for injunction the trial Court rejected the plaint. On appeal, the order of rejection was recalled concommitant with remand but no interim injunction was granted. Consequential revision in the High Court was decided by Aftab Hussain, J., holding that the suit was barred by Order XXI, rule 103, C.P.C. The Supreme Court dismissed the resulting appeal essentially on the ground that the claim of the appellant was not bona fide or independent of the judgment debtor. The implications of this judgment are not and cannot be that the Supreme Court obliquely or in totality affirmed the decision of Aftab Hussain. J., in the case of Ali Hassan ibid. Though that case, was expressly relied upon in the High Court and relevant passage was expressly -quoted in the Supreme Court. Rather, the claim being ex facie frivolous it was thought fit to endorse that portion of the dictum of Aftab Hussain, J., which, as quoted above, seems to be more or less unexceptionable. Here, it may bear mention that the decisions in Re: Ali Hassan as wellas in the cases of Khursheed Begum, Kulsoom Bai and Sa-lahuddin were all rendered in Rent matters but because eviction orders were, by law, equated with decrees of a Civil Court, the outcome is no less applicable.
17. To summarise, the object behind Ali Hassan was and remains to discourage spurious anticipatory objections by third parties, having nexus with judgment-debtors, so as to frustrate or defeat decrees before such have hardly taken off in execution but, as opined by Kaikausi J., in the case of Sahibun Nisa and affirmed by the Supreme Court in the matter of Khursheed Begum never to throttle otherwise lawful and honest third party claims, upon execution having actually been undertaken and process either issued or about to be issued, what to say of situations where even police aid to ensure enforcement has been allowed. In the last mentioned state of things, when police aid or breaking open of lock(s) or both is sought by a decree-holder, I am inclined to think, a party claiming in good faith, independently of the judgment-debtor and in its own right may forward and say that such an application for the given relief by the decree-holder may be treated by the Executing Court as one under Order XXI, rule 97, which it ought to have been but for the suppression of real facts, on grounds involving third party interests contemplated in rules 97 and 98 ibid, and claim an inquiry. Such a plea would then relegate the decreeholder's prayer as one under Order I XXI, rule 97, C.P.C. And necessitate an inquiry covered even by the letter of rule 97. This was precisely the position in the execution relative to which this suit arises.
18. The hyper-technical conclusion of the learned two Courts as regards maintainability may, therefore, have been open to serious doubt. At the same time merits were only cursorily touched without really examining the characterand substance of the rights of the plaintiff here, such having remained untouched in the suit. Where she was not a party to anything. The appellate Court went as far as to say that the appeal before it was not competent, the provision of rule 1 (ii) of Order XLIII, C.P.C. Notwithstanding. It then treated the appeal to be a revision thereby, though unwittingly, shutting the doors of a (second) revision under section 115, C.P.C. On the present plaintiff completely. In such behalf, however, though the learned Judge has not said so, some support could have been drawn by the Addl. District Judge from the observations in the case of Ali Hassan, where such an objection, as aforesaid, was treated to be one under section 151, C.P.C. And, no appeal being provided as regards such orders, a revision alone was visualised as the remedy. This approach, with respect, is not correct. When an objection in the way of Order XXI, rule 97, C.P.C. Is registered, may it be by a decree-holder or a third party, whose right to apply to a Court is now sanctioned on authority, it is a supplication under Order XXI, rule 97 though the Court is not restricted to the technicalities of that provision. According to what Kaikaus, J., observed in Re: Sahibun Nisa it could be an exercise of inherent power but in view of what he himself opined in the case of Mohiuddin above, at the level of the Supreme Court, a proposition endorsed in the matter of Khursheed Begum, Order XXI, rule 97 is only a recognition and regulation of a pre-existing power of the Executing Court, the power having always been there even before the promulgation of the Code. It is also thus a power within rule 97 of Order XXI and not a mere inherent power, calculated to meet the ends of justice or to prevent abuse of the process of the Court, under section 151, C.P.C.
19. If so, the matter is eminently covered by Order XXI, rule 103, C.P.C. And an appeal should be competent under Order XLIII, rule l(ii), C.P.C.
20. Bar to this suit is also claimed on the ground that an independent suit is wholly incompetent under rule 103 of Order XXI, C.P.C., as it stands atpresent, whether a third party, covered by rule 97 of the same Order, approaches or does not approach the Executing Court. Reference on the point may be made to Shelizad Ahmed v. Muhammad Hayat, PLD 1983 Lah. 234, Quality Steel Corporation v.
21. Muhammad Tufail, 1984 CLC 2255 and Salahuddin v. Zahiruddin, PLD 1988 SC 221. The argument is substantially correct. Still and even though it must be conceded, that the present plaintiff could have essentially agitated her rights in terms of Order XXI, rule 97, C.P.C. And the bar under rule 103 thereof could arise, she has been thwarted in her attempt to do so. The matter cannot be reagitated. It stands there. That is that. It would be unjust in the extreme to relegate her to the stage where she should suffer dispossession first, then apply under rule 100 of Order XXI, C.P.C and thereupon, if need be, go higher up pursuant rule 103, her earlier endeavour in terms of rule 97 having so inequitably failed. Such a course of action was expressly decried in rc: Sahibun Nisa, as approved by the Supreme Court in the case of Khurshid Bibi supra.
22. Before concluding, a passing reference may be made to the state of law as regards rule 103 in Order XXI, C.P.C. Prior to the amendment of 1972. At that time also under such rule, seeking of an adjudication in terms of rules 97 and 100 of Order XXI was found to be a prerequisite before an aggrieved party could file a suit. However, no corresponding appeal was then competent. Rigour of the rule was softened in Mohiuddin Mona v. Province of East Pakistan, PLD 1962 SC 119, where the Supreme Court laid down that the right to file a suit by a person aggrieved consequent upon the proceedings under rules 97 to 102 of Order XXI, C.P.C. Was independent of rule 103 of that Order and such suit could be filed irrespective of the fact whether the Executing Court was or was not approached. The Supreme Court must thus be seen as making room for alternative reliefs under the then law, a construction calculated to advance the remedy and suppress the mischief. True, a suit in matters covered by Order XXI, rule 103, C.P.C. Is now barred but it is barred only when proceedings squarely failing within the ambit of that rule are not resorted to or fail on merits. You cannot deny all avenues to an aggrieved person. If a proceeding is not covered by rule 103 of Order XXI, a suit is clearly competent. If it is covered an adverse finding entails an appeal etc. Both cannot be true at the same time. But that is what has occasioned this suit. The findings under Order XXI, C.P.C. Are that proceedings under rule 97 thereof were barred. Now the defendants say that this suit is also barred. Obviously, an aggrieved person cannot be non-suited in every forum. The two orders in execution thus can be no orders under Order XXI, rule 103, C.P.C. And neither the same nor the remote remedy under rule 100 of Order XXI, nor rule 103 supra itself, in the circumstances, bar the present suit.
23. Accordingly, this application is liable to be dismissed also because if there is no bar under Order XXI, rule 103, C.P.C.. There is obviously a cause of action.
24. Correspondingly, the bar of limitation as well does not seem to be attracted. The application under Order XXI, rule 97, C.P.C. Was diligently and bona fide persued in successive forums each of which turned it down holding such to be incompetent and for want of jurisdiction. This suit, in result, has - been riled within a very short time after the plaintiffs appeal was treated to be a revision and was simultaneously dismissed. On none of these grounds the plaint can be rejected. The application under Order VII, rule 11, C.P.C. Is, therefore, dismissed.
25. Written statement to be filed by the defendants on a date to be fixed by the Additional Registrar.
26. The plaintiff is also permitted to file an application for bringing legal representative of defendant No. 4 on record by moving an appropriate application. Order accordingly.