JUDGMENT H. L. Agrawal J. This application in revision has been directed by the decree holder against whom the opposite party filed an application under rule 100 of Order 21 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). A preliminary question on maintainability of the said application was rasied on behalf of the decree-holder and decided against him which has given rise to the present application. 2. The short facts leading to the filing of the present application are as follows. The petitioner took an agreement for sale on 14th August, 1966 from two persons who are opposite party nos. 5 and 6 in this application with respect to certain landed property and ultimately filed a title suit for specific performance of the contract for sale on 24th July, 1967 which was numbered as Title suit no. 64 of 1967. This suit was decreed and the petitioner filed Execution case no. 15 of 1969 in the Court below. Opposite party no. 1 who is uncle of opposite party nos. 5 and 6 to this application had filed a claim case on the 8th December 1969 in the said execution case under rule 58 of Order 21 of the Code. In the meantime the sale deed was already executed in favour of the petitioner on the 7th October, 1969 by the executing court. On 22nd August, 1970 however, opposite party no. 1 applied in the said miscellaneous case filed under rule 58 of Order 21 for striking of the said case without adjudication on the ground that he had already instituted Title Suit no. 8 of 1969 for declaration that the transfer of the property (Debottar) was illegal and void. The learned Munsif, on filing of the said application, passed an order on 22nd August, 1970 in the following term:- "Let the suit (Miscellaneous case) be dismissed without adjudication." It is admitted that the aforesaid Title suit no. 8/69 is still pending for adjudication in the court below in which the petitioner has also been impleaded as a party defendant along with his vendors, namely, opposite party nos. 5 and 6. 3. Delivery of possession over the property conveyed to the petitioner in the aforesaid execution proceeding was effected to him on 1st November, 1970 through the processes of the court and thereupon the opposite party no. 5 and 6. 3. Delivery of possession over the property conveyed to the petitioner in the aforesaid execution proceeding was effected to him on 1st November, 1970 through the processes of the court and thereupon the opposite party no. l instituted the proceeding under rule 100 of Order 21, as already stated earlier, in the court below. In the rejoinder a question of maintainability of this proceeding was raised on behalf of the petitioner and this issue of maintainability of the proceeding was pressed as a preliminary issue. The court below by the impugned order has held the proceeding to be maintainable and, therefore, this revision application has been filed in this Court, 4. Mr. Bimal Bhushan Sen, learned counsel appearing in support of this application, has urged that in view of the order dated 22nd August, 1970, referred to above, passed in the earlier miscellaneous proceeding instituted at the instance of opposite party no. 1 as also on account of the fact that the title suit seeking declaration of his title and challenging the transfer of the property under the sale deed executed in his favour, the application under R 100 of Order 21 was incompetent. In support of his contention reliance has been placed on a Full Bench decision of the Madras High Court in Cannanore Bank Ltd. v. P.A. Madhavi where an application filed under rule 58 of Order 21 of the Code was disposed of by an order which runs as follows:- "Petition not pressed. It is dismissed. The learned Chief Justice while making a distinction between an order permitting withdrawal of such an application and an order of dismissal even without adjudication has, if 14 may say so with great respect, made a very fine distinction, and I may usefully quote the relevant portion for the purpose of brevity: "If the petitioner had in fact asked to be allowed to withdraw the petition and the court had acquiesced in the course it might very well be that the order would not be an adverse order within the meaning of the rule, but we do not agree that because a claimant says to the court that he does not press the petition and consents to an order of dismissal, it is not adverse order. In such circumstances, it would in our opinion, clearly be an order against him within the meaning of rule 63....." 5. In such circumstances, it would in our opinion, clearly be an order against him within the meaning of rule 63....." 5. A similar question fell for consideration in the Madras High Court in another Full Bench case in, Duraisami Nadar V. Sudalaimada Nadar and others, where the decree-holder had taken possession of certain properties in execution of a decree on 3.3.1953. An application was filed under rule 100 of the Code by the respondents in that case alleging that they were wrongfully dispossessed and prayed for restoration of their possession. Eventually, On 15.2.1954, an endorsement was made by the said respondents in that case that they did not propose to prosecute the application as they intended to file a separate suit and the said application was dismissed on the same day as not pressed. Therefore the suit in question was filed on 27.8.1955, that is, beyond a period a one year from the date of dismissal of the miscellaneous case, for declaration of their title to the suit property and for recovery of possession over the same and other relief’s A question of limitation was raised as to whether, in the circumstances, Article 11-A of the Limitation Act, 1908, applied to that suit. A Division Bench, in view of the conflicting decisions of the various High Courts, including the Full Bench case of their own High Court in A.I.R. 1942 Madras 41 (supra), on the question as to whether such an order of dismissal of a miscellaneous case would amount to an adverse order within the meaning of rule 103 of Order 21 of the Code, referred the matter to a Full Bench, The Full Bench, on consideration of the various authorities, explained the earlier Full Bench case and took the view that the procedure prescribed by rules 100 and 101 is only permissive, and it is entirely in the option of the party dispossessed to apply or not to the Court under rule 100 for restoration of possession. If he does not choose to adopt that procedure, it will in no way interfere with his right to resort to any other alternative remedies that he might be entitled to; for example, a suit. If he does not choose to adopt that procedure, it will in no way interfere with his right to resort to any other alternative remedies that he might be entitled to; for example, a suit. But once the summary remedy provided by rule 100 was availed and certain consequences contemplated under rule 101 follow, namely, that if there is an investigation and adjudication by a Court under rule 101, he would have to challenge the correctness of the order, in case it operates adversely to him, by a suit as provided in rule 103. It was further held that the procedure prescribed in rule 100 being optional, the applicant could at any time withdraw his application without in any way affecting his remedy under the general law of filing an independent suit. In this view of the matter, Article 11-A of the Limitation Act was held to be applicable only to suits instituted under Order 21, rule 103 of the Code and not to a suit instituted by a party who institutes a suit by taking resort to the alternative remedy available to him. Applying the above principles to the facts of that case, it was laid down that a dismissal of the petition on the ground that it was open to a claimant to abandon his claim and to have it treated as if it had never been made, or where the person objecting to the attachment did not ask for his claim to be adjudicated, it could not be held that there was an adverse order so as to attract the provisions of rule 63, and as the endorsement on the application made by the respondents revealed an intention on their part not to pursue further the proceeding, that would only amount to a mere withdrawal. It could not be said that the miscellaneous case was withdrawn because the petitioner did not and could not produce evidence, but what at all the party intended was to abandon the petition intending to pursue the remedy left to him under the general law and the stage contemplated by rule 101 was not reached. I find myself in respectful agreement with the views of the Madras High Court in A.I.R. 1962 Madras 181 (supra). Support of this view may also be taken from the decision of a Bench of this Court in Dwarika Sahu Vs. Mt. Anandi and others. I find myself in respectful agreement with the views of the Madras High Court in A.I.R. 1962 Madras 181 (supra). Support of this view may also be taken from the decision of a Bench of this Court in Dwarika Sahu Vs. Mt. Anandi and others. The facts of this case are that the plaintiff had instituted a case under Order 21 rule 97 of the Code, but on the very first date fixed for hearing in the case, there was no appearance on his behalf and the case was dismissed for default even before the appearance of the other side. Thereafter a regular suit was filed for declaration of title and recovery of possession more than a year after the dismissal of the case filed under rule 97 aforesaid. On a consideration of the various authorities, it was held that the order of dismissal of the case in question was not one passed after investigation and, therefore, the suit was not governed by Article 11-A of the Limitation Act. I may, however, make it clear that the investigation by and satisfaction of the Court may be the result of the evidence produced before it or by reason of the default of a party in not producing evidence. 6. In the present case, the Opposite party No.1, who had filed the earlier claim case, had applied before the Court for striking off his claim case without adjudication on the ground that he had already instituted a regularly constituted title suit under the general law and the order dismissing the said application clearly records that it was being dismissed without any adjudication. The learned Munsif, however, taking an erroneous view of the facts and the circumstances of the present case has held that since the delivery of possession had already been effected to the Decree-holder, the remedy of the Opposite Party No.1 was not the filing of a suit under rule 63 of Order 21, but a f claim case under rule 100. In my opinion, the learned Munsif has not correctly appreciated the scope of the summary remedy provided either under rule 58 or rule 100 of Order 21 of the Code and the reason for holding the maintainability of the present case cannot be sustained in law. In my opinion, the learned Munsif has not correctly appreciated the scope of the summary remedy provided either under rule 58 or rule 100 of Order 21 of the Code and the reason for holding the maintainability of the present case cannot be sustained in law. Had there been a clear adjudication of the claim of Opposite Party No. 1 in the earlier claim case, he could not have waited until the stage of the delivery of possession without taking recourse to the filing of a suit under rule 63 challenging the correctness of the same simply on the plea that the subsequent stage contemplated by rule 100 permitting an application was different, namely, the actual dispossession. In both the stages, namely, the stage of a claim made at the time of the mere attachment and that made after the actual delivery of possession, identical question is involved as to whether the possession of the property by the claimant is either on his own account, or on account of some person other than the judgment-debtor. However, in the view that I have taken, the order of dismissal of the earlier miscellaneous case, which was not an order after adjudication of the right of the claimant, this difficulty is not there before the opposite party regarding the maintainability of the present application. But his difficulty arises on account of his having already chosen the alternative remedy of instituting a regularly constituted suit under the general law for exactly the same and similar relief, namely, Title Suit No.8 of 1969 referred to above. In this view of the matter, he was not entitled to avail the alternative and optional summary remedy either under rule 58 or rule 100 of Order 21 of the Code. The miscellaneous case filed by him under Order 21, rule 100 of the Code is, therefore, without jurisdiction and not maintainable on the face of it. 7. I would, accordingly, allow this application and set aside the order of the learned Munsif. The petitioner will be entitled to the costs. Application allowed.