Revision petitions under Section 115 are non-maintainable against orders passed under Section 96; appeal should be under Section 100 of the Code of Civil Procedure.

JUDGMENT :

AJAY MOHAN GOEL, J.

1. By way of this civil revision filed under Section 115 of the Code of Civil Procedure, the petitioners have challenged the order passed by the Court of learned Additional District Judge (Fast Track Court), Chamba, District Chamba, H.P. dated 16.08.2011, in Civil Appeal No. 4 of 2010, titled as Rattan Chand and others vs. Om Parkash and others , in terms whereof, learned Additional District Judge, in an appeal filed under Section 96 of the Code of Civil Procedure before him, set aside the order passed by the Court of learned Executing Court, i.e. the Court of learned Civil Judge (Sr. Divn.), Chamba, in CMA No. 248/2009/07 in Execution Petition No. 08/1998.

2. Before proceedings further, it is necessary to mention that the facts that necessitated the filing of the present petition are as under:-

In an execution petition preferred by the decree holders, i.e. the contesting respondents before this Court, the objections under Section 47, read with Order 21, Rules 58 and Sections 97 and 151 of the Code of Civil Procedure, were preferred by the petitioners herein. The decree passed by the Court, execution of which was being sought, was passed by learned Sub Judge 1st Class, Chamba, District Chamba, H.P. on 05.01.1983, in Civil Suit No. 31 of 1982, titled as Rattan Chand and others vs. Ami Chand and others. The decree passed by the Court was for redemption of mortgage without payment of consideration amount to defendants No. 1 to 20 in favour of the plaintiffs, defendants No. 21 to 41 and against defendants No. 1 to 20. In the course of execution of the said decree, the objections in issue under Section 47 of the Code of Civil Procedure read with Order 21 and Rule 58 and 97 thereof were filed. The objections were in fact third party objections, as the contention of the objectors before the learned Executing Court was that they were in possession of the suit land and neither they nor their predecessor-interest were made party in the civil suit, therefore, the Court was not having any jurisdiction to give possession of the suit land to the decree holders.

3. Feeling aggrieved, the Decree holders preferred an appeal under Section 96 of the Code of Civil Procedure. In terms of the impugned order, this appeal has been allowed. Feeling aggrieved by the order passed by learned first Appellate Court, the objectors have preferred this revision petition under Section 115 of the Code of Civil Procedure.

4. Learned Senior Counsel appearing for the respondents/Decree Holders has taken an objection with regard to the maintainability of this revision petition. He submitted that as the order under challenge was passed by learned Appellate Court under Section 96 of the Code of Civil Procedure, therefore, the present petition filed under Section 115 of the Code of Civil Procedure is not maintainable. Learned Senior Counsel after referring to the provisions of Order 21 of the Code of Civil Procedure in general and Rules 97 onwards thereof in particular, has argued that in terms of Rule 103 thereof, where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree and as the order passed by the learned Executing Court was under the said provisions, and as the same was challenged under Section 96 of the Code of Civil P