JUDGMENT

1. This is an application for revision of an order of the learned Munsif, North Luoknow, dated 4th March 1935, rejecting the applicant's application under Order 21, Rule 100, Civil P.C., as not maintainable. The facts are that one Jagat Narain brought a suit on a mortgage against a certain Gaya Din. The mortgaged property consisted of a house. To this suit Jagat Narain impleaded the present applicant Bal Kishen also, but he was subsequently discharged. A decree for sale of the house was passed against Gaya Din and it was made absolute on 23rd September 1933. The house was sold in execution of the decree and purchased by the opposite party Mohammad Hafiz. The purchaser obtained delivery of possession through Court and thereupon the application under Order 21, Rule 100, Civil P.C., was brought by the present applicant. It appears that subsequently to the passing of the final decree in Jagat Narain's suit, but before the sale of the house in execution of that decree, the present applicant filed a declaratory suit in respect of the house, but it was dismissed. The present applicant filed an appeal against the dismissal of his suit on 11th January 1935.

2. When the application under Order 21, Rule 100, Civil P.C., was filed, it was opposed on the ground that as the applicant's declaratory suit had been dismissed the matter was res judicata. The learned Munsif without coming to a finding that the matter was res judicata dismissed the applicant's application holding that it was not maintainable. The learned Counsel for the applicant argues that as an appeal had been filed by his client against the decree dismissing the declaratory suit, the matter could not be said to be res judicata. On behalf of the opposite party it is conceded that the rule of res judicata does not apply, but it is said that the learned Munsif was right in holding that the application was not maintainable. We are unable to agree with this view. We are of opinion that when the conditions requisite under Order 21, Rule 100 (1) are fulfilled, it is the Court's duty to investigate the matter. In the present case the present applicant was a person other than the judgment-debtor. He was dispossessed of immoveable property by the purchaser and he did make an application complaining of such dispossession. In these circumstances Sub-rule (2) of Rule 100 applies, the provisions of which are mandatory. It says:

The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

3. We do not think that the fact, that the declaratory suit brought by the applicant had been dismissed, was a bar to the maintainability of his application under Order 21, Rule 100, Civil P.C., or that the Court can shirk its duty under Rules 100 and 101 on account of any extraneous matter. The learned Counsel for the opposite party argues that as under Rule 101 of Order 21 it is necessary for an applicant under Rule 100 to satisfy the Court that he was in possession of the property on his own account, and as in the present case the applicant's suit has been dismissed, it must be presumed that he would not be able to satisfy the Court that he was in possession on his own account and, therefore, the application must be deemed to be not maintainable. We cannot accept this argument. This suit brought by the applicant related to title but an investigation under Rules 100 and 101 is restricted to the question of possession only and even though the applicant may not have good title to the property, if he can show that he was not in possession on behalf of the judgment-debtor but on his own account, he must under Rule 101 be put in possession of the property. Then again, it is said that if the applicant's application under Rule 100 is entertained, one of the parties will be under the necessity of bringing a suit under Rule 103 in spite of the previous suit between them having been decided. This argument does not also