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HIGH COURT OF DELHI
KANNU THRU LRS – Appellant
Versus
DAULAT RAM THRU LRS – Respondent
CM(M)-144_2008
CM(M) 144/2008
Kannu Through Lrs v. Daulat Ram Through Lrs
Page 1 Of 7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: January 19, 2010
Date of Order: March 22, 2010
+ CM(M) 144/2008
%
22.03.2010
Kannu Through Lrs
...Petitioners
Through: Mr. S.S. Panwar with Mr. Sunil Dutt, Advocates
Versus
Daulat Ram Through Lrs
...Respondents
Through: Mr. S.K. Bagga, Sr. Advocate with Mr. Seeraj Bagga,
Advocates
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not?
Yes.
3. Whether judgment should be reported in Digest?
Yes.
JUDGMENT
1. By way of present petition, the petitioner has assailed an order dated
10th January 2008 passed by the learned ADJ allowing an appeal against an
order dated 29th August 2006 of learned Civil Judge.
2. Brief facts relevant for the purpose of deciding this petition are that the
respondent’s predecessor Daulat Ram, who was allottee of Plot No. 138, had
filed a suit for possession against the predecessor of the respondent. A
decree of possession was passed in favour of Shri Daulat Ram on 16th
December 1982 in respect of one Khokha measuring 8’x6’ existing upon a
piece of land measuring 103 sq yards in Village Abadi, Old Roshanpura,
Nazafgarh, New Delhi. Against this judgment, an appeal was filed by Shri
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CM(M) 144/2008
Kannu Through Lrs v. Daulat Ram Through Lrs
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Kanu, predecessor of present petitioners being RCA No.87 of 1983. The first
appellate court stayed the operation of decree of trial court during pendency
of appeal. In the meantime, Mr. Kanu filed an LPA No.69 of 1980 against an
order passed in favour of Mr. Daulat Ram in a Writ Petition No.878 of 1975.
Looking at the pendency of LPA before this Court, the first appellate court
adjourned RCA No.87 of 1983 sine die. The LPA No.69 of 1980 was dismissed
on merits on 28th September 2004. The appeal filed by Shri Kanu, predecessor
of the petitioner, was dismissed as withdrawn on 27th October 2006. After
dismissal of LPA, the respondent/ decree holder filed an execution before the
Civil Judge for execution of the decree passed on 16th December 1982, being
execution no.67 of 2004. In this execution petition, some of the Lrs of Mr.
Kanu filed objections which were dismissed vide order dated 15th January
2005. Against dismissal of these objections, the Lrs of Mr. Kanu filed a
CM(Main) petition which was also dismissed by High Court on merits on 24th
November 2005 and against the order of this Court dismissing the CM(Main)
petition, an SLP was filed by Lrs of Mr. Kanu which was dismissed by the
Supreme Court on 23rd January 2006. The present petitioners who are
daughters of Mr. Kanu filed fresh objections against the execution of decree
under Section 47. This was the second round of objections filed by Lrs and
while deciding these objections, the learned Civil Judge held execution to be
time-barred. Against this order, the respondent/ decree holder preferred an
appeal against the order before learned ADJ which was allowed vide the
impugned order.
3. One of the main objections taken before the learned ADJ and before
this Court as well, is about the maintainability of the appeal in view of the
amendments in the Civil Procedure Code in 1976 whereby Section 47 was
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Kannu Through Lrs v. Daulat Ram Through Lrs
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omitted from the Definition of Decree under Section 2 sub Section 2 vide
Amendment Act No.104 of 1976. The learned ADJ considered these objections
and observed that since the suit was instituted before 1976 and the appeal
against the judgment /decree being already pending when the Amendment
Act came into force, the right to appeal being a substantive right, the
amendment would not affect the right of the party to file an a
