Back
High Court Of Jharkhand
Judgename : M. Y. EQBAL
JOGENDRA KAUR - Appellant
Versus
KALI PRASAD - Respondents
A. A. D. 187 Of 2002
Decided On : 02/03/2003
Second Appeal - Maintainability - Order 21, Rule 103 - Summary of Acts and Sections: Order 21, Rule 99, Rule 101, Rule 100, Rule 103 - The court discussed the provisions of Order 21, Rule 99, Rule 101, Rule 100, and Rule 103 of the Civil Procedure Code, emphasizing that all questions relating to right, title, and interest of a person dispossessed in execution of a decree shall be adjudicated by the same Court on an application and not by way of a regular suit. The court also cited precedents to support the view that the ordinary rules of Civil Procedure apply, and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal.
Fact of the Case:
The appeal was filed challenging the judgment passed by the 1st Additional District Judge, Jamshedpur in Misc. Appeal No. 3/1984, which affirmed the order passed by Munsif, Jamshedpur in Misc. Case No. 26/77. The respondent alleged illegal dispossession from a house and filed an application under Order 21, Rule 99 C. P. C. The Executing Court determined the claim in favor of the respondent, leading to the appeal.
Finding of the Court:
The court found that the Second Appeal was maintainable under Order 21, Rule 103 C. P. C. as the order passed on adjudication shall have the same force and subject to the same conditions as to appeal as if it were a decree. The court also cited precedents to support the view that the ordinary rules of Civil Procedure apply, and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal.
Issues: The main issue was the maintainability of the Second Appeal under Order 21, Rule 103 C. P. C., as it is not expressly conferred under the said provision.
Ratio Decidendi: The court held that the Second Appeal was maintainable under Order 21, Rule 103 C. P. C. based on the construction of the relevant provisions of the Code and cited precedents to support the view that the ordinary rules of Civil Procedure apply, and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal.
Final Decision: The Second Appeal was held to be maintainable. Ordered accordingly.
M. Y. EQBAL, J.
( 1 ) THIS appeal has been listed for hearing on the preliminary question of maintainability of this Second Appeal.
( 2 ) I have heard Mr. N. K. Prasad, learned counsel for the appellant.
( 3 ) THIS appeal has been filed under S. 100 read with Order 21, Rule 103 of the C. P. C. challenging the judgment dated 23-8-2002 passed by 1st Additional District Judge, Jamshedpur in Misc. Appeal No. 3/1984 whereby he has dismissed the appeal and confirmed the order dated 19-11-1983 passed by Munsif, Jamshedpur in Misc. Case No. 26/77.
( 4 ) IT appears that respondent No. 1 Kali Prasad filed an application Under Order 21, Rule 99 C. P. C. in Execution Case No. 280/70 for putting him in possession of the house being Holding No. 431 alleging inter alia that he was illegally dispossessed from the said house in consequence of writ of delivery of possession in Execution of a decree. The case of the respondent is that the house in question belonged to one Bhima Gorai respondent No. 2 who sold the holding by registered sale deed dated 6-6-1966 in his favour and delivered possession of the same and since then he has been residing with his family members. On 25-4-1977 he along with his family members were forcibly dispossessed with the help of police when he was on duty. The said application of respondent No. 1 was registered as Misc. Case No. 26/77. The Executing Court on the basis of evidence both oral and documentary adduced by the parties determined and decided the claim in favour of respondent No. 1 and passed judgment and order dated 19-11-1983.
( 5 ) AGGRIEVED by the said judgment and order the present appellant filed appeal before the District Judge, Singhbhum East which was registered as Misc. Appeal No. 3/84. The said appeal was finally heard by Ist Additional District Judge, Jamshedpur who by the impugned judgment dismissed the appeal and affirmed the judgment and order passed by the Executing Court namely, Munsif Jamshedpur. Hence this Second Appeal.
( 6 ) THE question therefore that falls for determination is though under the provision of Order 21, Rule 103 appeal lies to the appellate Court, whether a Second Appeal also lies which is not expressly conferred under the said provision. The answer to this question can be arrived at on the construction of the relevant provisions of the Code.
( 7 ) ORDER 21, Rule 99 provides that where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree such person may make an application to the Court complaining of such dispossession. Sub-rule (2) provides that where such an application is made the Court shall proceed to adjudicate upon the application in accordance with the provisions contained in the Code. Rule 101 of Order 21 provides that all questions "inclouding question relating to right, title or interest in the property" on an application under Rule 97 or Rule 99 shall be determined by the Court dealing with the application and not by a separate suit. For better appreciation Order 21, Rule 101 C. P. C. is quoted hereinbelow :"question to be determined. All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. "
( 8 ) RULE 100 provides that on determination of such question court shall make an order allowing application and directing that applicant be put in possession of the property or dismiss the application. Such adjudication and determination under Rule 98 or Rule 100 shall be treated as a decree. Order 21, Rule 103 is worth to be quoted herein
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
