King, J.

1. The appellant in this appeal claims title to the western half of a certain house. The respondent was a decree-holder against a cousin of the appellant, who, according to the appellant, owned the eastern half. In execution of the decree, the respondent took delivery of the entire house. There was then an application under Order 21, Rule 100 by the appellant asking the Court to redeliver to him the western half of this house. During the progress of the inquiry into-that application, the respondent challenged the appellant in the following words:

If the petitioner swears on oath that the western half of the suit house belongs to him solely and that he himself built it and at the time when the plaintiff went for taking delivery it was in his possession, then to the extent of the western half, the petition may be allowed.

2. The appellant accepted the challenge and gave evidence on special oath in the affirmative on all the three points put to him by the respondent. This oath was of course followed by the allowing of the appellants petition. The respondent then filed a suit under Rule 103 against the appellant and his brother and they took the objection that no suit wou