S. N. Jha, J.

1. - This second appeal by the defendents arises out of a suit for declaration of title and a further declaration that the auction sale of the property in an execution proceeding and the order passed in a miscellaneous case are illegal, void and inoperative. The facts relevant to the question raised are that the plaintiff filed application under Order xxi, Rule 100 of the Code of Civil Procedure (in short, the Code), as it stood prior to its amendment by Act No 104 of 1976 complaining of illegal +dispossession, which was dismissed on November 21, 1977. The suit in terms of Rule 103, as unamended, was instituted on October 6, 1978. The suit was dismissed by the trial court but has been decreed by the first appellate court holding that it was maintainable and the plaintiff was entitled to declaration of his title and recovery of possession.

2. Mr. Wasi Akhtar, learned counsel for the appellants raised a short point. He submitted that by reason of the amended provisions, the suit was not maintainable and, therefore the decree is without jurisdiction.

3. It would be appropriate at this very stage to refer to the relevant provisions. The Code underwent substantial changes by Amendment act 104 of 1976 (in short the Amendment Act) which came into effect on February 1, 1977. The scheme of Code as it stood before its amendment, so far as it is relevant to the instant case, was that if a person other than the judgment-debtor was dispossessed in execution, he could apply under Rule 100 of Order XXI. If the executing court found that the applicant was in possession on his own account or on account of some person other than the judgment-debtor, the court would allow the application and put the applicant in possession under Rule 101. Rule 103 which made the orders passed, inter alia under Rule 101 conclusive subject to regular suit, provided that:

"any party not being a judgment-debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possesion of the property ; but, subject to the result of such suit (if any), the order shall be conclusive. "

Sec.72 of the Amendment Act sets out the amendments made in order XXI. Old Rules 98 to 103 have been substituted by the new rules. The scheme of the new rules is that all questions of right, title or interest arising for consideration in an application under Rule 97 (new) or Rule 99 (new) are to be determined finally by the executing court and not by a separate suit, and an order disposing of such an application has the force of a decree and is appealable. It may be mentioned that new Rule 99 corresponds to old Rule 100. For easy reference, new Rules 101 and 103 may be noticed in extenso:

"101. All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit for this purpose, the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.103. Where any application has been adjudicated upon under rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. "

It would appear that there was some controversy as to whether the executing court could decide the question relating to right, title or interest. In order to set at rest the controversy and to secure expeditious adjudication of the dispute between the parties to proceeding under Rule 97 or 99, such a jurisdiction was conferred upon the executing court to the exclusion of suit, notwithstanding anything to contrary contained in any other law for the time being in f