2014 Supreme(SC) 744

SUPREME COURT OF INDIA
DIPAK MISRA & V. GOPALA GOWDA, JJ.
Sameer Singh & Another - Appellants
Versus
Abdul Rab & Others - Respondents
Civil Appeal No. 9699 of 2014 [Arising out of S.L.P. (Civil) No. 33699 of 2011]
Decided On : 14-10-2014

IMPORTANT POINTS
When an application is adjudicated upon under Rule 98 or Rule 100 the order shall have force of a decree. It can be assailed by way of appeal.
When the court declines to adjudicate on ground of lack of jurisdiction, correctness of the same can be assailed under section 115 CPC or Article 227, Constitution of India.

Headnote:(a) Code of Civil Procedure, 1908 – Order XXI, Rules 97 to 103 – Rule 101 requires adjudication of all necessary issues – Rule 103 stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the order shall have force of a decree – Executing court expressing its inability to adjudicate on ground of lack of jurisdiction – Such order cannot be said to be a decree – No appeal lies – Appellant approaching High Court under Article 227 – No infirmity. (Para 21)

       (1996) 3 SCC 154; (1998) 6 SCC 200; (2006) 4 SCC 412; (1995) 1 SCC 242; AIR 1997 SC 856; (2003) 6 SCC 675 – Relied upon

       AIR 2002 Chhattisgarh 1 – Referred

       (b) Code of Civil Procedure, 1908 – Order XXI, Rule 101 – Executing court refusing to adjudicate on ground of lack of jurisdiction as it had become functus officio – Correctness of such order can be assailed u/s 115 CPC or Article 227, Constitution of India. (Para 22)

       AIR 1949 PC 239; AIR 1953 SC 23; AIR 1959 SC 492 – Relied upon

       Facts of the case:

       The Universal Construction Company, the respondent No. 3 herein, instituted Civil Suit in the High Court for realization of a sum of Rs.2,15,289.28 paise from the Engineers Syndicate (India) Private Limited, the 4th respondent herein, and an ex parte decree was passed in the suit.

       The decree so obtained was assigned in favour of Abdul Rab, respondent No. 1 herein. The 1st respondent got the said decree transferred to the Court of Sub Judge-I, Jamshedpur for execution by way of attachment and sale of immovable properties of the 4th respondent situated within the jurisdiction of the executing Court.

       The scheduled property was put up for sale by way of auction and ultimately Abdul Rafai, respondent No. 2, purchased the property and pursuant to the order of the Court took over possession of the said immovable property.

       The present appellants filed an application under Order XXI, Rules 97, 99 and 101 of the Code of Civil Procedure contending that the disputed property originally belonged to the 4th respondent who had borrowed a sum of Rs.14,571/- from his deceased father, Gopal Singh, by depositing the sale deeds of the said property on 18.2.1971 at Calcutta and had delivered possession of the said property to Gopal Singh on 19.2.1971 in lieu of interest of said borrowed amount. When he failed to pay the borrowed sum, the 4th respondent agreed to transfer the said property for a consideration of Rs.25,000/- to Gopal Singh after adjusting the borrowed amount i.e. Rs.14,571/-. Regard being had to the said arrangement, Gopal Singh had paid the balance amount of Rs.10,429/- and accordingly an agreement for sale was executed. When the 4th respondent did not honour his part of the contract, Gopal Singh instituted Title Suit against the 4th respondent and eventually the said suit was decreed on 14.5.1977. Thereafter, a case was filed and in pursuance of the decree a sale deed was executed on 10.10.1982 in favour of the father of the appellants through Court and he was put in possession through Nazir of the Civil Court in respect of the property in question, and after the demise of Gopal Singh, the appellants, being sons, inherited the said property and remained in possession having right, title and interest till 27.4.2008 when all of a sudden, respondent No. 2 through the help of Nazir took delivery of the property after dispossessing the appellants therefrom.

       It had been pleaded that respondent Nos. 1 and 2 had colluded to put the property to auction which did not belong to the respondent No. 4 and was not meant for attachment and sale, for it had been already released by the High Court of Calcutta and, in any case, the respondent No. 4 had no concern with the said property.

       The executing court came to hold that it had no jurisdiction to reopen and discuss the matter pertaining to the title of the parties in execution case at the instance of a third party. It further observed that as a finding had been recorded to the effect that the transferee-executing court had no jurisdiction to entertain the petition, the controversy raised could not be dealt with and no relief could be granted.

       The aforesaid order was assailed before the High Court. A preliminary objection was raised on behalf of the 1st respondent that an order passed under Order XXI, Rule 98 to 100 of C.P.C. is a decree as per the provisions contained under Order XXI, Rule 103 of C.P.C. and, therefore, an appeal would lie and the writ petition was not maintainable.

       The learned Single Judge accepted the preliminary objection and dismissed the writ petition.

       Finding of the Court:

       High Court has fallen into error by opining that the decision rendered by the executing court is a decree and, therefore, an appeal should have been filed.

       Result: Appeal allowed.