Judgment 1. In this application filed by the plaintiff, question arises for decision as to what would be the court-fee payable on the plaint instituted under Rule 103 of Order 21 of the Civil Procedure Code (hereinafter referred as the Code). 2. The relevant facts are that the petitioner having obtained a possessory decree, got delivery of possession of the lands in question on the 22nd December, 1963 in Execution Case No. 13/7 of 1963-64. 3. Opposite Party No. 1 filed an objection under Rule 100 of Order 21 of the Code in the execution case claiming that he had been wrongly dispossessed in execution of the decree in question. The claim was allowed and ultimately the petitioner instituted the title suit in question for setting aside the order dated the 24th August, 1965 passed on the objection of the opposite party under Rule 100 of Order 21 of the Code in execution proceeding. In the meantime the propertys possession was restored back to the objector (opposite party No. 1). Accordingly, the petitioner also prayed for declaration of title and recovery of possession. 4. The suit was instituted on a fixed court-fee only. On an objection being raised by the office, the Court below had considered the question of the sufficiency of court-fee under order No. 8 dated the 17th March, 1967 and relying upon certain authorities, held that the fixed court-fee paid by the plaintiff was sufficient and in accordance with Article 17 (1) of Schedule II of the Court-fees Act. 5. It appears that when the suit was taken up for hearing, the learned Munsif again took up the question of court-fee and by his order dated the 29th May, 1971, directed the Sarishtedar to check and report on the question of the court-fee, and on receipt of the report, by his impugned order, held that the plaintiff was liable to pay ad valorem court-fee. The learned Munsif has taken this view on the reasoning that the plaintiff had prayed for declaration of title or in the alternative, recovery of possession of the suit land and, therefore, it was not a simple suit under Rule 103 of Order 21 of the Code. The learned Munsif has taken this view on the reasoning that the plaintiff had prayed for declaration of title or in the alternative, recovery of possession of the suit land and, therefore, it was not a simple suit under Rule 103 of Order 21 of the Code. According to Rule 100 of Order 21 of the Code where any person other than the judgment-debtor is dispossessed of any immovable property by a decree-holder, he may make an application to the Court complaining of such dispossession and the Court on investigation of the matter, if satisfied that the applicant has been wrongly dispossessed, shall direct him to be in possession of the property in question. 6. Rule 103 itself provides that if any party against whom an order is made under Rule 101, may institute a suit to establish his right which he claims to the present possession of the property. Eventually in a suit under Rule 103 the Court has to investigate as to whether the property in question over which the plaintiff wants to establish his right to get possession, is liable to such a claim or not. In other words, the Court will have to examine the correctness of the decision of the executing Court as to whether the claimant was entitled to maintain his possession by virtue of his own right which is the subject-matter of the execution proceeding in question. In deciding this question, the Court has to incidentally go into the question of the right of the claimant including his title in order to decide the right of the plaintiff to take possession of the property in question. 7. Article 17 (i) of the second Schedule of the Court-fees Act provides for payment of a fixed court-fee on a plaint of a suit "to set aside the summary decision or order of any Civil Court......" It cannot be disputed that the scope of Rule 103 of Order 21 of the Code is in essence to set aside the summary decision of the Civil Court in execution of a decree while deciding the objection of a claimant to the delivery of possession to a decree-holder under Rule 101 of Order 21 of the Code. Once this summary decision is set aside, the decree-holder ipso facto becomes entitled to apply to the executing Court to effect delivery of possession of the property in question. 8. Once this summary decision is set aside, the decree-holder ipso facto becomes entitled to apply to the executing Court to effect delivery of possession of the property in question. 8. In the case of Dinkarrao Dharrao Rajurkar V/s. Ratansi Asaram, (AIR 1938 Nag 300) while considering a similar question and following the decision of the Judicial Committee in the case of Phul Kumari V/s. Ghanshyam Mishra, (1908) 35 Ind App 22 (PC) where also, apart from the declaration that the summary decision of the executing Court under Rule 101 of Order 21 of the Cede was illegal, the plaintiff-decree-holder had claimed for restoration of possession, it was held that the said relief was unnecessary and superfluous inasmuch as in considering a plaint and the relief, its substance has to be looked into and not the form. The substantive relief being the executing Courts order should be set aside, although in form it is for delivery of possession. The learned Judge further observed that in a suit under Rule 63 or Rule 103 of Order 21 for consequential relief in substance is not one to seek possession but reversal of the executing Courts order. I find myself in respectable agreement with the views expressed in the said decision. 9. It is manifest that a suit under Rule 103 of the Code is a statutory suit and the Court is entitled to set aside the summary order of the executing Court. Therefore, such a suit is obviously covered by Article 17 (i) of Schedule II of the Court-fees Act. In such a suit even if a prayer for possession is made, still it will be governed by the said provisions and as already held by the Judicial Committee, that part of the prayer is merely unnecessary and superfluous. 10. For the reasons stated above, it must be held that the fixed court-fee paid by the plaintiff on the plaint of the present suit is sufficient and will not call for the payment of an ad valorem court-fee. I would, accordingly, allow this application and set aside the impugned order in question. In the circumstances of the case, there will be no order as to costs.