Das, J.

1. This appeal arises out of an order passed by the learned Subordinate Judge of Muzaffarpur on the 16th of May, 1922. The respondents are the purchasers of the property in dispute at a sale held in execution of their decree. The appellant applied under the provision of O. 21, R. 100 of the Code for being put in possession of the dispute property. He contended that he was in possession of the property on his own account and he complained that he was dispossessed of the property by the respondents in execution of a decree which they had obtained against another person. This application was dismissed for default on two different occasions. Ultimately it was restored under the provisions of O. 9 R. 4 of the Code; and on the 5th August, 1916, the claim of the appellant was allowed in the absence of the respondents. On the 2nd October 1920, the suit, out of which this appeal arises, was instituted by the respondents for recovery of possession of the property in dispute. The suit was resisted by the appellant on two grounds, first, on the ground that it was barred by limitation secondly, on the ground that the suit was not maintainable as a previous suit by the plaintiff was allowed to be improperly withdrawn by the Court. The Court of first instance thought that the suit was well within time; but it came to the conclusion that the order allowing the plaintiff to withdraw the suit with liberty to bring a fresh suit was without jurisdiction and in this view it dismissed the plaintiff's suit. On appeal, the learned Subordinate Judge agreed with the view of the Court of first instance that the suit was not barred by limitation, but be differed from that Court as to the effect of the order allowing the plaintiff to withdraw the suit with liberty to bring a fresh suit. He thought that however erroneous that order might have been, it could not be said that the order was without jurisdiction. He accordingly allowed the appeal and remanded the case to the Court of first instance for disposal according to law. The present appeal is against the order of the learned Subordinate Judge remanding the case for trial.

2. The only question which we have to consider is whether the Courts below are right in holding that the suit is not barred by lapse of time. The suit is prima facie governed by Art. 11A of the Limitation Act and the period of limitation provided in Art. 11A is one year from the date of the order. The suit was obviously instituted in order to avoid the effect of the order passed on the 5th August 1916. The suit itself was instituted on the 2nd October 1920. Prima facie the suit is barred by limitation; but it was argued on behalf of the respondents that the order of the 5th August 1916 is a nullity and that he is entitled to disregard that order and bring his suit within 12 years from the date he was dispossessed by the defendants. According to the learned Vakil O. 9 R. 4 is not applicable to a proceeding under O. 21 R. 100 of the Code. He accordingly argues that the Court had no jurisdiction to restore the application which was presented under O. 21. R. 100 after it had been dismissed for default. The learned Vakil maintains that, that being so, the order of the 5th August 1916 allowing the claim of the defendants was without jurisdiction and null and void. The argument advanced on behalf of the respondents is supported by the decision of the Calcutta High Court in the case of Hari Charan Ghose v. Manmatha Nath Sen (1914) 41 Cal. 1:  18 C.W.N. 343: 19 I.C. 683 but is negatived by the decision of this Court in Satya Narain Lal v. Govind Sahay (1918) 3 P.L.J. 250: 4 P.L.W. 102: 43 I.C. 951. The learned Vakil argues before us that the decision in Satya Narain v. Gobind Sahay (1918) 3 P.L.J. 250: 4 P.L.W. 102: 43 I.C. 951 has been overruled by the decision of the Special Bench in the case of Bhubaneswar Prashad Singh v. Tilakdhari Lal (1919) 4 P.L.J. 135: 49 I.C. 617. According to the contention of the learned Vakil we are conclusively bound by the decision in the case of Bhubaneswar Prashad Singh v. Tilakdhari Lal (1919) 4 P.L.J. 135: 49 I.C. 617 and that we are bound to hold that O. 9 R. 4 is not applicable to a proceeding under O.21, R. 100 of the Code.

3. It is admitted by Mr. Susil Madhab Mullick on behalf of the appellant that O. 9 R. 4 of the Code of Civil Procedure does not, of its own force, apply to a proceeding under O. 21 R. 100; but he contends that he is entitled to apply O. 9 R. 4 to a proceeding under O. 21 R. 100 by force of S. 141 of the Code. S. 141 of the Code runs as follows:-"The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of civil jurisdiction". In the case of Thakur Prashad v. Fakirullah (1895) 17 All 106: 22 I.A. 44: 6 M.L.J. 9: 6 Sar 526 (P.C.) the Judicial Committee pointed out that the proceedings spoken of in S. 141 of the Code include original matters in the nature of suits such as proceedings in probate, guardianships and so forth and that they do not include executions. It was also pointed out by the Judicial Committee that both from the Code itself and the provisions of the Limitation Act, the legislature contemplated that there might be a succession of applications for execution and that it was unlikely that the legislature should make O. 9, R. 4 applicable to an execution proceeding since it was open to the decree-holder to make a succession of applications for execution. I regard the decision of the Judicial Committee in Thakur Prashad v. Fakirullah (1895) 17 All 106: 22 I.A. 44: 6 M.L.J. 9: 6 Sar 526 (P.C.) as establishing that S. 141 of the Code does not operate so as to make the provision of O. 9, R. 4 and all cognate provisions applicable to execution proceedings.

4. But this conclusion, in my opinion, does not decide the present case. The question which we have to consider is whether a proceeding under O. 21, R. 100 is a proceeding in execution. As to this I have expressed my opinion very frequently to the effect that an application under O. 21, R. 100 cannot be regarded as an application in execution. I have stated the reasons so fully in a recent case which came up before my learned brother and myself that I do not think it necessary to repeat them. The case of Hari Charan Ghose v. Manmatha Nath Sen (1914) 41 Cal. 1: 18 C.W.N. 343: 19 I.C. 683 does indeed support the arguments of the respondents; but that case assumed, rather than decided, that an application under O. 21, R. 100 is an application in an execution proceeding. The case of Haricharan Ghose v. Manmatha Nath Sen (1914) 41 Cal. 1: 18 C.W.N. 343: 19 I.C. 683 is confessedly based on the decision of the Judicial Committee in the case to which I have referred; but all that the Judicial Committee decided is that the proceedings spoken of in S. 141 of the Code original matters in the nature of suits and that they do not include execution. The other ground upon which Haricharan Ghose v. Manmatha Nath Sen is based is that the order in a proceeding under O. 21, R. 100 is not conclusive, but is subject to the right of the person aggrieved to bring a suit: but it seems to me that the right to apply under O. 21, R. 100 does not stand on the same footing as a right to maintain a suit, if the application under O. 21, R. 100 is dismissed. All that the applicant has to establish in a proceeding under O. 21, R. 100 is that he was possessed of the property on his own account or on account of some other person than the judgment-debtor; but if he is compelled to institute a suit he has to establish the right which he claims to the present possession of the property. The question in my opinion is not solved by a reference to the provision of O. 21, R. 103 of the Code.

5. The question came up for decision in our Court in Satya Narain v. Gobind Sahay (1918) 3 P.L.J. 250: 4 P.L.W. 102: 43 I.C. 951. Mr. Justice Roe in delivering the judgment of the Court very properly pointed out that all that was decided by the Judicial Committee in Thakur Pershad v. Faktrullah (1895) 17 All 106: 22 I.A. 44: 6 M.L.J. 9: 6 Sar 526 (P.C.) was that O. 9, R. 9 was not applicable to proceedings in execution and the learned Judge thought that the decision of the Judicial Committee did not support the conclusion that O. 9, R. 9 was not applicable to a proceeding under O. 21, R. 100. The learned Judge pointed out that an application under O. 21, R. 100 is in the nature of a summary suit and that in that view the provision of O. 9, R. 9 should apply to such an application. In my opinion, the case of Satya Narain Lal v. Gobind Sahay (1918) 3 P.L.J. 250: 4 P.L.W. 102: 43 I.C. 951 was correctly decided and is binding on this Court. It was strongly pressed before us that Satya Narain Lal v. Gobind Sahay has been overruled by the decision of the Special Bench in the case of Bhubaneshwar Prashad v. Tilakdhari (1919) 4 P.L.J. 135: 49 I.C. 617; but I am unable to take the view that it was within the scope of the decision in the Special Bench case to overrule Satya Narain Lal v. Gobind Sayay. What is actually decided in the Special Bench case is that O. 9, R. 9 does not apply to an application under O. 21, R. 90 of the Code. No doubt the arguments employed by the learned Judges deciding the case of Bhubaneshwar Prashad Singh v. Tilakdhari (1919) 4 P.L.J. 135: 49 I.C. 617 apply with equal force to an application under O. 21, R. 100; but, though the decision itself is binding on me, I do not think that I ought to be compelled to accept that which logically follows from that decision as equally binding on me, especially as I consider that the decision in Bhubaneshwar v. Tilakdhari (1919) 4 P.L.J. 135: 49 I.C. 617 needs re-examination. The whole problem is whether O. 9, R. 9 applies by force of S. 141 to a proceeding under O. 21, R. 100. Now an application under O. 21, R. 100 is not an application in execution proceedings, but is an original matter in the nature of a suit, and in my opinion the decision of the Judicial Committee in the case cited is an authority for the proposition that O. 9, R. 9 would apply by force of S. 141 to original matters in the nature of suits.

6. I am unable to look upon the order of the 5th August 1916 as a nullity. That being so, the suit, which was instituted on the 2nd October 1920, was clearly barred by limitation under the provisions of Art. 11-A of the Limitation Act. I would accordingly allow the appeal, set aside the order passed by the learned Judge in the Court below, and restore the decree passed by the Court of first instance. The appellant is entitled to his costs throughout.

L.C. Adami, J.

7. I agree.