An order passed under Order 21 Rule 98, CPC is appealable like a decree under Rule 103, CPC.

P.P. GUPTA, J.

1. Smt. Sabira Begum alias Dhooman Begum, Sabir Raza Khan and Hasan Raza have filed this petition praying for a writ of certiorari quashing the impugned orders dated 26-9-1991 (Annexure 1' to the petition), passed by Respondent No. 2, and 30-10-1991 (Annexure 2'), passed by Respondent No. 1.

2. The facts of the case in brief, are that M/s. Chhotey Lal and Sons, Respondent no 3, had filed Suit No. 475 of 1970 against Petitioner no. 2, Sabir Raza Khan, for ejectment and recovery of areas of rent. The suit was decreed in favour of the Plaintiff. In execution proceedings, Smt. Sabira Begum, Petitioner no. 1, moved an application u/s 47 of the CPC (hereinafter referred to as the 'CPC') which was rejected by the executing Court. Subsequently, Respondent No. 3 moved an application under Order 21 Rule 97, CPC against present. By an order dated 26-9-1991, this application, moved by the decree-holder (Respondent No. 2), was allowed. Being aggrieved from this order, the Petitioners filed a revision before Respondent No. 1, which was dismissed on 30-10-1991. Feeling aggrieved, the Petitioners have filed the present writ petition before this Court.

3. Learned Counsel for the Petitioners was heard at length and the record of the case was perused.

4. Petitioner no. 2 is the judgment debtor, and Petitioners no. 1 and 3 are his wife and son respectively. They have resisted delivery of possession to Respondent No. 3. It was for this reason that Respondent No. 3 moved an application under Order 21 Rule 97, CPC complaining of such resistance on the part of the Petitioners.

5. Order 21 Rule 101, CPC prescribes that 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 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. Such questions, as are referred to in Rule 101, are to be adjudicated under Rule 98 Sub-rule (2) of this Rule reads as under :

(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceedings, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detailed in the civil prison for a term which may extend to thirty days.

Rule 103 lays down that an order passed under Rule 98 is to be treated as a decree. This rule is quoted below :

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 is thus clear that an order passed under Rule 98, CPC is appealable like a decree under Rule 103, CPC.

6. A comparison of old Rules contained in Order 21, Rule 28(2) to 103, CPC with the new Rules substituted by the CPC (Am.) Act, 1976 would show that under the old Rules there was no specific power conferred on the executing Court to finally decide the questions of right, title or interest in the property in dispute as is now conferred by the new rule 101. AH that the Court was directed to determine under the old rule 101 was whether the applicant was in possession of the property on his own account or on account of some person other than the judgment debtor and in case it was found that he was in bona fide possession on his own account, the Court was required to direct that he be put into possession. Against an order made under the old rule 101 whether the cl