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2005 Supreme(All) 1037
IN THE HIGH COURT OF ALLAHABAD
POONAM SRIVASTAVA
BRIJ PAL SHARMA - Appellant
Versus
SUKARMA developers PVT. LTD. - Respondents
C. M. A. 171 Of 2005
Decided On : 05/27/2005
Anshu Chaudhary, B.DAYAL, Rahul Sahai, Vishnu Sahai
The main legal point established in the judgment is the treatment of an order deciding an objection under Order 21, Rule 97, CPC as a decree under Order 21, Rule 103, CPC, and the emphasis on deciding the question of maintainability before proceeding to decide on merits.
Headnote:
Article 227 - Jurisdiction - Order 21, Rule 97, CPC - Order 21, Rule 103, CPC - The court discussed the maintainability of a Misc. Appeal filed against an order deciding an objection under Order 21, Rule 97, CPC. The court emphasized the provisions of Order 21, Rule 103, CPC, which states that the order shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. The court also referred to the definition of 'decree' under Section 2(2) CPC and emphasized that the order passed under Order 21, Rule 97, CPC was necessarily to be treated as a decree. The court set aside the impugned order and remanded the case to decide the question of maintainability before proceeding to decide on merits.
Fact of the Case:
The case involved a dispute over a property lease deed and a subsequent suit for eviction. The applicant, as the decree holder, initiated execution proceedings, and the contesting respondents filed a Misc. Appeal against the order deciding their objection under Order 21, Rule 97, CPC.
Finding of the Court:
The court found that the order deciding the objection under Order 21, Rule 97, CPC was to be treated as a decree and emphasized the need to decide the question of maintainability before proceeding to decide on merits. The court set aside the impugned order and remanded the case for expedited decision.
Issues: The main issue was the maintainability of the Misc. Appeal filed against the order deciding the objection under Order 21, Rule 97, CPC.
Ratio Decidendi: The court emphasized the provisions of Order 21, Rule 103, CPC and the definition of 'decree' under Section 2(2) CPC to establish that the order passed under Order 21, Rule 97, CPC was to be treated as a decree. The court also highlighted the need to decide the question of maintainability before proceeding to decide on merits.
Final Decision: The court set aside the impugned order and remanded the case to decide the question of maintainability before proceeding to decide on merits. The application under Article 227 of the Constitution was allowed.
( 1 ) HEARD Sri Rahul Sahai, learned counsel for the applicant and Sri anshu Chaudhary, Advocate for the contesting respondents.
( 2 ) THIS is an application under Article 227 of the Constitution of India, challenging the order dated 24-3-2005, passed by the Additional District Judge, Court No. 4, mathura, in Misc. Appeal No. 30 of 2005 (Sukarma Developers Private Limited v. Brij pal Sharma ).
( 3 ) THE sole ground of challenge is, that misc. Appeal filed by the contesting respondents, against the order dated 18-2-2005, by the executing Court while deciding the application under Order 21, Rule 97, was not maintainable. Therefore, the entire proceedings before the Additional District judge. Mathura, in Misc. Appeals are rendered without jurisdiction.
( 4 ) A preliminary objection has been raised on behalf of contesting respondents, regarding the maintainability of the present application. Counsel for the respondents has argued that the appeal was allowed by the civil Judge (Senior Division), on transfer from the District Judge, and the case was remanded to the trial Court (executing Court)exercising the powers under Order 41, Rule 23 and 23-A, CPC as such the applicant should have filed a first Appeal from Order.
( 5 ) THE facts giving rise to the dispute are that the applicant-Brij Pal Sharma, son of late Hari Shanker Lal Sharma, is the decree holder. In pursuance to the lease deed dated 14-9-1946 executed in favour of Late Hari shanker Lal Sharma, the father of the applicant came in possession over the disputed property and thereafter sublet a portion of the leased property to one Ram Swarup son of Bhagwan Das. The tenancy of Ram swarup was terminated by Hari Shanker Lal sharma. lessee, but, since the possession was not handed over, a civil suit for eviction, being Original Suit No. 131 of 1980 was instituted. The suit was decreed vide judgment and decree dated 21-1-1981. Ram swarup preferred an appeal before the District judge, Mathura, which was also dismissed vide judgment and order dated 25-8-1983. The execution proceedings were initiated in the year 1984, after the dismissal of appeal of Ram Swarup and it was registered as Execution Case No. 21 of 1984, in the Court of Civil Judge, (Junior Division)Mathura. Second Appeal against the judgment and decree dated 21-1-1981 and 25-8-1983, was also dismissed.
( 6 ) DURING the pendency of the execution proceedings, one Murari Lal filed a Civil Suit viz. Original Suit No. 283 of 1994 in respect of the same property against Ram Swarup, for eviction on the ground that the property in possession of Ram Swarup was purchased by him from the original owner Bhagwan Das on 6-2-1965, and it was stated that the lease in favour of the applicants father late Hari shanker Lal Sharma, was terminated long back and he had no interest over the property. In the subsequent suit filed by Murari lal, in the year 1994, neither the applicant nor his father was arrayed as a party and it is stated in the application that some how, the contesting respondents, in collusion with ram Swarup, obtained a Dakhalnama over the property in dispute. When the applicant came to know about the subsequent suit No. 283 of 1994 filed by Murari Lal, a separate suit No. 625 of 1995 for cancellation of the judgment and decree dated 7-7-1995 was instituted, wherein the contesting respondents were restrained from interfering in the peaceful possession of the applicant vide interim order dated 2-8-1995. In the meantime, an objection was filed under Section 47, CPC by Murari Lal in execution case No. 21 of 1984, which was identical to the plaint allegation of Suit No. 283 of 1994. The said objections were rejected by the Court on 22-5-1998. A revision against said order was also rejected on 21-4-1998. Respondent-Murari Lal preferred a Writ Petition No. 15514 of 1998 which was dismissed on 5-11-2004. The execution proceeding initiated by the applicant, is pending since the year 1984, in which the application filed by the contesting r
