The main legal point established in the judgment is the importance of correctly interpreting the appropriate appeal provision under the CPC for a specific case.

JUDGMENT :

Heard Mr. M.A. Sheikh, learned counsel for the appellants and Mr. A.R. Sikdar, learned counsel for the respondents.

2. The respondents are the decree holder in respect of a judgment and decree dated 09.03.2009 in Title Suit No. 112/2007 passed by the Court of learned Munsiff, Bilasipara at Dhubri, which had been confirmed by the judgment and order dated 01.11.2011 in RSA No. 277/2011. Accordingly, for execution of the decree, Title Ex. Case No. 03/2011 had been instituted by the respondents in the Court of learned Munsiff, Bilasipara at Dhubri. The present petitioners/appellants claiming adverse possession over the suit land involved in the decree in favour of the respondents filed an application under Order XXI Rule 97 and 101 of the CPC read with Section 47 of the CPC resisting the execution of the decree. Order XXI Rule 101 makes it explicit that an application under Order XXI Rule 97 or Rule 99 shall be determined by the Court in respect of all questions including questions relating right, title and interest of the property arising between parties and not by a separate suit for the purpose. Accordingly, it has to be understood that the application under Order XXI Rule 97 read with Section 47 of the CPC would have to be understood to be a proceeding in the nature of a suit. The application of the petitioners/appellants under Order XXI Rule 97 and 101 read with Section 47 of the CPC was rejected by the order dated 17.09.2019 in Misc. (J) Case No. 65/2012 passed by the Court of learned Munsiff, Bilasipara at Dhubri.

3. On dismissal of the resistance to the execution of decree under Order XXI Rule 97 and 101 read with Section 47 of the CPC, the appellants instituted an appeal under Section 96 read with Order XLI of the CPC which was registered as Misc. Appeal No. 16/2019. The Misc. Appeal No. 16/2019 was determined by the learned appellate Court being the Court of the Civil Judge (Sr. Div.), Dhubri by the judgment dated 05.08.2022. The very first paragraph of the judgment dated 05.08.2022 provides as extracted :

“(1) The appeal under Section XLIII Rule 1 of the CPC has been preferred by the appellant against the judgment and order dated 17/09/2019 passed in Misc. (J) Case No. 65/2012 by the Ld. Munsiff, Bilasipara.”

4. The afore-extracted paragraph of the judgment dated 05.08.2022 makes is discernible that the learned Civil Judge proceeded with the appeal understanding it to be an appeal under Order XLIII Rule 1 of the CPC. Order XLIII Rule 1 of the CPC is extracted as below :

“1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely:—

(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed];

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(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;

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(f) an order under rule 21 of Order XI;

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(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

[(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.]

(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under rule 10 of Order XXII giving or refusing to give leave;

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(n) an Order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

5[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an applicati