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Judgment
Jawad Rahim
Appellant whose application under Rule 97 of Order XXI, C.P.C. is rejected, is in appeal construing such order as a decree in terms of Rule 101, C.P.C. However, during address for admission, learned Counsel has referred to certain facts which makes it clear that before the executing court the issue is about enforceability of the decree passed granting an order of mandatory injunction which is undoubtedly not a decree for possession. Execution has to proceed under Rule 32 of Order XXI, C.P.C. and no order has been passed issuing warrant for delivery of possession as required under Rule 35... In this view, Rule 97 of Order XXI, C.P.C. invoked by the appellant was not available, nor any order passed under such application will debar the plaintiff from'' enforcing his right of ownership in respect of the property in question.
In this view, I am inclined to accept the request of the learned Counsel to permit him to withdraw the appeal to have his right enforced by a separate suit. In case plaintiff seeks such independent remedy by filing original suit, disposal of the application under Rule 97 and the finding recorded thereon shall have no bearing. With this observation, the request is granted. The appeal is dismissed as withdrawn.