H. L. Agrawal J.

This application in revision has been directed by the decree holder against whom the opposite party filed an application under rule 100 of Order 21 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). A preliminary question on maintainability of the said application was rasied on behalf of the decree-holder and decided against him which has given rise to the present application.

2. The short facts leading to the filing of the present application are as follows. The petitioner took an agreement for sale on 14th August, 1966 from two persons who are opposite party nos. 5 and 6 in this application with respect to certain landed property and ultimately filed a title suit for specific performance of the contract for sale on 24th July, 1967 which was numbered as Title suit no. 64 of 1967. This suit was decreed and the petitioner filed Execution case no. 15 of 1969 in the Court below. Opposite party no. 1 who is uncle of opposite party nos. 5 and 6 to this application had filed a claim case on the 8th December 1969 in the said execution case under rule 58 of Order 21 of the Code. In the meantime the sale deed was already executed in favour of the petitioner on the 7th October, 1969 by the executing court. On 22nd August, 1970 however, opposite party no. 1 applied in the said miscellaneous case filed under rule 58 of Order 21 for striking of the said case without adjudication on the ground that he had already instituted Title Suit no. 8 of 1969 for declaration that the transfer of the property (Debottar) was illegal and void. The learned Munsif, on filing of the said application, passed an order on 22nd August, 1970 in the following term:-

"Let the suit (Miscellaneous case) be dismissed without adjudication." It is admitted that the aforesaid Title suit no. 8/69 is still pending for adjudication in the court below in which the petitioner has also been impleaded as a party defendant along with his vendors, namely, opposite party nos. 5 and 6.

3. Delivery of possession over the property conveyed to the petitioner in the aforesaid execution proceeding was effected to him on 1st November, 1970 through the processes of the court and thereupon the opposite party no. l instituted the proceeding under rule 100 of Order 21, as already stated earlier, in the court below. In the rejoinder a question of maintainability of this proceeding was raised on behalf of the petitioner and this issue of maintainability of the proceeding was pressed as a preliminary issue. The court below by the impugned order has held the proceeding to be maintainable and, therefore, this revision application has been filed in this Court,

4. Mr. Bimal Bhushan Sen, learned counsel appearing in support of this application, has urged that in view of the order dated 22nd August, 1970, referred to above, passed in the earlier miscellaneous proceeding instituted at the instance of opposite party no. 1 as also on account of the fact that the title suit seeking declaration of his title and challenging the transfer of the property under the sale deed executed in his favour, the application under R 100 of Order 21 was incompetent. In support of his contention reliance has been placed on a Full Bench decision of the Madras High Court in Cannanore Bank Ltd. v. P.A. Madhavi where an application filed under rule 58 of Order 21 of the Code was disposed of by an order which runs as follows:-

"Petition not pressed. It is dismissed. The learned Chief Justice while making a distinction between an order permitting withdrawal of such an application and an order of dismissal even without adjudication has, if 14 may say so with great respect, made a very fine distinction, and I may usefully quote the relevant portion for the purpose of brevity:

"If the petitioner had in fact asked to be allowed to withdraw the petition and the court had acquiesced in the course it might very well be that the order would not be an adverse order within the meaning of the rule,