Back
Karnataka High Court
M.S.KHALID - Appellant
Versus
K.R.RANGASWAMY - Respondent
Decided On : 01-17-03
C.R.P. : 2689 of 2002
CIVIL PROCEDURE CODE, 1908 - Section 115, Order 21 Rule 103, Rule 97 -Civil Revision Petition filed under section 115 of CPC praying to set-aside the order passed against a memo filed by the 1st respondent - the learned Civil Judge had directed that the appeal shall be registered as Execution Appeal instead of Regular Appeal - whether the said appeal should be designated as a Regular Appeal or as an Execution Appeal? - Held, lower Appellate Court directed to treat the appeal as not an execution appeal but as an appeal as contemplated under order 21 Rule 103 CPC.
[D. V. Shylendra Kumar, J.] - There is no gainsaying in the fact that an appeal preferred as against an order on an application under Rule 97 CPC is an appeal whether it is termed as a Regular Appeal or by any other name and is governed by the provisions of Rule 103 of Order 21 CPC. On adjudicating an application under Rule 97 CPC, the resultant order is given the status of a decree and as against every decree, appeal is provided for under the Code. It is under such circumstances the provisions of Rule 103 CPC have been incorporated by the Amending Act 104 of 1976 indicating the manner in which such appeals are to be dealt with. Even if the appeal is styled as a Regular Appeal, the scope is again to be looked into from the provisions of Order 21 CPC. However, describing that as an execution appeal which was an expression in vogue earlier, is not an accurate description of an appeal of this nature. The Lower Appellate Court is directed to treat the appeal as not an execution appeal, but as an appeal as contemplated under Order 21 Rule 103 CPC. It is clarified that irrespective of the nomenclature given to the said appeal, the scope and the manner in which the said appeal is to be disposed off is governed by the provisions of Order 21 CPC and other relevant provisions of the Code. It is neither enlarged nor restricted by other provisions.
( 1 ) THIS is a very peculiar revision petition which is directed against the order dated 28-5-2002 passed on a memo which had been numbered as r. A. 21 of 2001 on the file of the Court of the Civil Judge (Senior division), Madikeri. By the impugned order, the learned Civil Judge had directed that the appeal shall be registered as execution appeal instead of as R. A. No. 21 of 2001 inasmuch as the appeal arises out of Ex. Case no. 125 of 1995 on the file of the Principal Civil Judge (Junior Division), madikeri.
( 2 ) IT is on this controversy as to whether the said appeal should be designated as a regular appeal or as an execution appeal, the present revision petition is preferred.
( 3 ) I have heard Sri Abdulla, learned Counsel for the petitioners and sri Gaurishankar, learned Counsel for first respondent.
( 4 ) THE brief facts leading to the above revision petition are that the present revision petitioner is a person who has filed an application under Order 21, Rule 97 of the Code of Civil Procedure ('cpc', for short) in ex. Case No. 125 of 1995 on the file of the Court of the Principal Civil judge (Junior Division), Madikeri, as an obstructer when the decree in o. S. No. 36 of 1991 on the file of the Court of the Principal Civil Judge (Junior Division), Madikeri, was sought to be executed. O. S. No. 36 of 1991 in itself was a suit which had been filed by the first respondent in this revision petition as against the second respondent praying for specific performance of an agreement in respect of an extent of five cents of land in Sy. No. 56/23 of Block No. 8, Madikeri Municipality. The said suit was decreed. However, when the decree was sought to be executed and possession of the said five cents of land was sought to be handed over to the decree-holder, the present revision petitioner raised an objection contending that he was already in possession of eight cents and he could not be disturbed from this portion of the land while executing the decree in favour of the first respondent in this revision petition.
( 5 ) IT appears, the Executing Court having rejected his application, an appeal was preferred to the Court of the Civil Judge (Senior Division), kodagu, which was dismissed. As against the said order, the obstructer carried the matter by way of a revision in C. R. P. No. 1479 of 2001 to this court. However, this revision petition was dismissed by this Court observing that the civil revision petition was not maintainable as the revision petitioner was entitled to file an appeal against the order under challenge. It is thereafter that the present revision petitioner has preferred an appeal to the Court of Principal Civil Judge (Junior Division), madikeri under Section 96 read with Order 41, Rule 1 and Order 21, rule 103 of the CPC.
( 6 ) THE office had registered this appeal as R. A. No. 21 of 2001 and on such registration, the respondents therein took objections contending that it cannot be registered as a regular appeal and it can only be designated as an execution appeal as contemplated under Rule 5 (b) of the Karnataka Civil Rules of Practice CKCRP, for short ). The lower appellate Court having accepted the memo filed praying for such re-designation of the appeal and having directed that the appeal to be renumbered as an execution appeal, the appellant is in revision before this court.
( 7 ) SRI Abdulja, learned Counsel appearing for the revision petitioner submits that the scope of an execution appeal is much narrower and in fact the provisions of Rule 5 (b) of the KCRP are not very germane to the proceedings, particularly in the light of the amendments that have been brought about in the CPC in the matter of the manner in which an obstructor, in the course of an execution of a decree, is to be treated and as to how an application filed under Order 21, Rule 97 of the CPC is to be disposed off. Order 21, Rule 97 reads as under. "resistance or obstruction to possession of immovable property. (1)
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
