The court permitted the conversion of a writ petition into a civil appeal, emphasizing the prioritization of substantive justice over technical dismissals when pursuing statutory remedies.

ORDER :

1. The present writ petition has been filed assailing the validity of the order dated 04.11.2022 passed by Additional District Judge No.1, Sri Ganganagar in Civil Misc. Case CIS No.95/2022, whereby the application of the petitioner preferred under Order XXI Rule 90 CPC was rejected.

2. Instant writ petition was presented before this Court on 14.11.2022. This Court vide ad interim order dated 21.11.2022 directed to maintain status quo as on that date. The said interim order was recalled by this Court on 20.05.2025. Thereafter, an application (4/2025) was preferred on behalf of the petitioners under Article 226 of the Constitution of India with the following prayer:

“It is, therefore, most humbly and respectfully prayed that this application may kindly be allowed and the present writ petition may kindly be converted and treated as S.B. Civil Execution First Appeal under Order 43 Rule 1 CPC.”

3. Learned counsel for the petitioners-applicant fairly submits that the order dismissing the objection to the auctions proceedings is appealable order, however, due to inadvertence, the petitioner–Company instead of preferring an appeal, had preferred the present writ petition. To buttress his contention, learned counsel for the petitioner has relied upon the judgments of Hon’ble the Supreme Court in the case of Nawab Shaqafath Ali Khan & others vs. Nawab Imdad Jah Bahadur & others, 2009 Supreme (SC) 439 , judgment of Karnataka High Court in the case of Talari Thippeswamy vs. Doddappa , I.L.R. 1996 KAR 750 and judgment of Andhra Pradesh High Court at Hyderabad in the case of Konati Swamanna vs. Golla Venkataswamy , 2005 (1) A.P.L.J. 272 (HC).

4. Controverting the submissions raised in the said application (04/2025), learned counsel appearing for the respondents has filed a reply to the application, inter alia, contending that the petitioners, without assigning any plausible reason for the inordinate delay, have moved the present application seeking conversion of the writ petition into an Appeal after a lapse of more than 2½ years, and that too subsequent to the vacation of the status quo order. It is further urged that the petitioners, in their application, have prayed that “the writ petition may be “converted and treated as an S.B. Civil Execution First Appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908” which is misconceived, defective, and legally untenable, and as such, the same is liable to be rejected.

5. To the aforesaid contention of learned counsel for the respondents that the remedy lies by way of “Miscellaneous Appeal” not a “Civil Execution First Appeal” leaned counsel for the petitioner orally prays that the present writ petition may be converted into S.B. Civil Miscellaneous Appeal.

6. Heard learned counsel for the parties, perused the impugned order as well as the material available on record and have also gone through the judgments relied upon learned counsel for the petitioners.

7. Initially, at the time of filing of the reply to the instant writ petition, it was specifically averred by the respondents in Preliminary Objection “B” which reads as under: “Admittedly, the petitioner has preferred this writ petition against the rejection of an application filed under Order 21 Rule 90 of the Code of 1908, wherein the learned Executing Court refused to set aside the sale-deed confirmed in favour of the answering respondent. According to Order 43 Rule 1(j) of the Code of 1908, an appeal against such an order is clearly provided, which is a statutory and efficacious remedy through the filing of an appeal before the competent court of law.”

8. Now,