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HIGH COURT OF CALCUTTA
S. R. DASS, MALLICK
KUNDALATA BISWAS - Appellant
Versus
CHANDRA KAMINI DASI - Respondent
A. F. A. D. 1270 Of 1951
Decided On : MAY 17, 1955
ORDER 21 RULE 100 - DISPOSSESSION OF IMMOVABLE PROPERTY - APPLICATION BY NON-JUDGMENT DEBTOR - SUIT FOR ESTABLISHMENT OF RIGHT TO POSSESSION - APPLICABILITY OF SECTION 47 - INTERPRETATION.
Fact of the Case:
Plaintiff, Kundalata, inherited a share in properties from her mother, Kiran Bala. After Kiran Bala's death, her husband, Ashutosh, mortgaged the properties on behalf of himself and his minor children, Kundalata and Kanaklata. After Ashutosh's death, the mortgagee instituted a suit against his heirs, including Kundalata. The suit was decreed against Nimai, but dismissed against Kundalata and Kanaklata. In execution of the decree, Kundalata was dispossessed of her properties. She filed an application under Order 21, Rule 100, Civil Procedure Code (CPC) for restoration of possession, which was partially successful. She then filed a suit under Order 21, Rule 103, CPC, claiming her right to possession of the properties.
Finding of the Court:
The trial court decreed the suit in Kundalata's favor, but the lower appellate court reversed the decision, holding that the application under Order 21, Rule 100, CPC, was an application under Section 47, CPC, and that the only remedy available to Kundalata was to file an appeal against the order. The court relied on the provisions of Section 47, CPC, which state that questions arising between parties to a suit relating to the execution, discharge, or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit.
Issues: 1. Whether an application under Order 21, Rule 100, CPC, by a non-judgment debtor who has been dispossessed of immovable property is barred by Section 47, CPC. 2. Whether a suit under Order 21, Rule 103, CPC, can be maintained to establish the right to possession of immovable property after an application under Order 21, Rule 100, CPC, has been dismissed.
Ratio Decidendi: 1. The court held that Order 21, Rules 100 to 103, CPC, place orders passed on applications under Rule 100 in a different category from orders passed under Section 47, CPC. 2. The court interpreted Rule 103 as providing a specific remedy for a party aggrieved by an order passed under Rule 100, and that such a party is not limited to filing an appeal. 3. The court distinguished the Full Bench decision relied upon by the respondent, holding that it dealt specifically with an order on an application for delivery of possession under Order 21, Rule 95, CPC, which has no special provision placing it in a different category from orders under Section 47, CPC. 4. The court also held that the question of title raised in the suit did not relate to the execution, discharge, or satisfaction of the decree, and therefore did not fall within the purview of Section 47, CPC.
Final Decision: The court allowed the appeal, set aside the judgment and decree of the lower appellate court, and restored and affirmed the judgment and decree of the trial court. The appellant was awarded the costs of the appeal.
( 1 ) THIS is an appeal from a decision of the District Judge, Murshidabad, dated 16-6-1951, reversing a decision of the Subordinate Judge, Murshi-dabad, dated 31-8-1950.
( 2 ) THE matter arises in this way: One Hindu Bashini Biswas and Kiran Bala Biswas purchased the properties which are mentioned in schedule Ka to the plaint filed in the suit out of which this appeal arises. Kiran Bala Biswas purchased the properties mentioned in schedule Kha in a rent execution case being Case No. 51 of 1950 on 28-4-1910. Kiran Bala's husband was one Ashutosh. He had a son by Kiran Bala named Sachinandan and two daughters named Kundalata and Kanak-lata. After the death of Kiran Bala, the said Ashutosh married again and got a son by his second marriage named Nitai. The said Nitai has not been heard of, for a long time but his wife's name is Binapani and he has a son by the name of Amalendra. After the death of Kiran Bala, her property was inherited by Sachinandan and her two daughters Kundalata and Kanaklata and on Sachinanda's death his share in the properties inherited by him from Kiran Bala went to Ashutosh. Ashutosh executed a mortgage, of the properties mentioned in the Kha schedule on behalf of himself and his minor children Kundalata and Kanaklata. After Ashutosh's death the mortgagee instituted a suit against his heirs namely Nitai and also against Kundalata and Kanaklata. The said suit was decreed against Nimai and dismissed against Kundalata and Kanaklata, the court having held that the minors are not bound by the said mortgage. In execution of this decree, Kundalata was dispossessed of her properties although the suit against her was dismissed. Thereupon she filed an application under Order 21, Rule 100, Civil P. C. for being restored to possession. The said application was successful in part that is, in respect of some of, the properties belonging to Kundalata, but the properties which were the subject matter of the Ka schedule and Kha Schedule were not restored to her. Thereupon the said Kundalata filed the Present suit under the provisions of Order 21, Rule 103 of the Code. In the said suit she complained of her dispossession not only with respect to Kha sche- dule property but also with respect to the Ka schedule properties. Both the courts found that she had title to the extent of l/3rd share in Ka schedule properties and 2/3rd share in Kha schedule properties. The trial court decreed the suit in her favour. Against that decision, there was an appeal and the lower appellate court reversed the decree on the ground that the application which she made under Order 21, Rule 100 of the Code was really an application under Section 47 of, the Code and that being so, the only remedy that was left open to the said Kundalata was to prefer an appeal against the said order and no suit would lie in respect of the same. The said court inter alia observed as follows:"it has been Urged that this suit is barred under section 47 of the Code of Civil Procedure. It is said that as the plaintiff was a party to the mortgage suit, the application which the plaintiff filed under Order 21, Rule 100, O. P. C. was really an application under Section 47, C. P. C. and the order passed in the application which is not appealed against is conclusive and the present suit is barred in view of the provisions of section 47, C. P. C. I think this contention is well founded. In the mortgage suit the plaintiff was a party. . . . . But though the suit was dismissed against the plaintiff yet the plaintiff was a party to the suit as contemplated by Section 47 of the Code of Civil proce-dure. It is clear from Section 47, Civil P. C. that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The question as to whether the plain-tiff was dis
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