P L D 1961 Dacca 594 (PLP)

Md. Yakub Hossain for the Deputy Registrar in Case No.

524. MURSHED, J.‑These two Rules were issued on two appli cations under section 115 of the Code of Civil Procedure in respect of the same property and our one judgment will govern both of them. The said applications arise in the following circum stances :‑

2. In the course of execution of a decree, which was obtain ed by the Province of East Bengal, the petitioners who were not parties to the suit in which the decree was passed, were ousted from possession. Thereupon the petitioners applied to Court under Order XXI, rule 100 of the Code of Civil Procedure for restoration of possession. The Court below allowed the said application and passed an order in favour of the petitioners for restoration of possession. The Province of East Bengal had merely obtained symbolical possession and did not take physical posses sion of the property in question. The petitioners thereafter put the order passed in their favour under Order XXI, rule 101 of the Code into execution. In the course of the execution of the said order the opposite parties before us were ousted from possession. The said opposite parties thereupon applied to the Court below under Order XXI, rule 100 of the Code for restoration, stating that they were actually in possession of the said property and that they had been ousted by an officer of the Court in the course of the execution of the order in favour of the petitioners. These applica tions were marked as Miscellaneous Cases Nos. 69 and 70 of 1957.

3. The learned Subordinate Judge, who heard and disposed of those applications, entered into the merits of the same and decided in favour of the opposite parties. Before him it was contended on behalf of the petitioners before us that Order XXI, rule 100 of the Code had no application to execution of orders. It was further contended that they were in actual possession of the property in question. The learned Subordinate Judge decided both those contentions against the petitioners before us. He held that Order XXI, rule 100 of the Code also applied to execu tion of orders and further that the opposite parties before us were in possession of the said property. He, therefore, passed an order in favour of the opposite parties under Order XXI, rule 101 of the Code.

4. Against the aforesaid order passed by the learned Subor dinate Judge disposing of the said two miscellaneous cases, the petitioners moved this Court in the exercise of its civil revisional jurisdiction and obtained the present Rules.

5. At the hearing of these Rules Mr. Debesh Chandra Bhattacharjee, who appeared before us for the petitioners, refrain ed from addressing us on the merits of the case because it was concluded by the finding of fact arrived at by the Court below. He has, however, contended before us that the provisions of Order XXI, rule 100 of the Code of Civil Procedure do not apply to the execution of orders: He has drawn our attention to section 36 of the Code which reads as follows:‑ "The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders." Upon a construction of the aforesaid provisions of section 36 of the Code, Mr. Bhattacharjee has argued that only such provisions of the Code, which relate directly to the execution of decrees, have been made applicable to the execution of orders, and that con versely, such provisions, which are merely ancillary to the execu tion of decrees, have no application to the execution of orders.

6. The argument put forward by Mr. Bhattacharjee looks prima facie attractive ; but on closer examination it will be found untenable. Section 36 of the Code in express terms makes all the h provisions "relating to the execution of decrees" applicable to the execution of orders. The provisions of Order XXI, rule 100 of the Code are certainly provisions relating to the execution of decrees and, in our opinion, they are applicable to the execution of orders. We, therefore, hold that the provisions of Order XXI, rule 100 of the Code of Civil Procedure are applicable to the execution of orders. No other point was pressed before us. We, therefore, hold that there is no substance in these revision petitions. The Rules are, therefore, discharged without any order as to costs. A. H. Rules discharged.