Calcutta High Court
Gopalan Vikraman Nair vs Taranath Dey Sarkar And Anr. on 23 November, 1981
Equivalent citations: AIR1982CAL162, 86CWN225, AIR 1982 (NOC) 162 (CAL), (1982) 86 CAL WN 986, (1982) 86 CAL WN 139, (1982) 1 CAL LJ 61
ORDER Sudhindra Mohan Guha, J.
1. The order dated 28-4-1981 passed by Sri A. K. Chatterjee, Judge. City Civil Court in Misc. Case No. 1429 of 1979 rejecting the application under Order 21, Rule 106 has been challenged under the present revision.
2. The decree for ejectment obtained by O. P. against one Narayan Prasad Ghosh was put into execution by Ejectment Execution Case No. 379 of 1979. The execution of the decree being resisted the decree-holder filed an application under Order 21, Rule 97. C. P. Code for police help, which was allowed on 21-2-1981.
3. The petitioner wanted to have the said order set aside by an application under Order 21, Rule 106. It is observed by the learned Judge that the petitioner entered appearance in the proceeding, cross-examined one of the witnesses for the petitioner and thereafter retired from the proceeding. Accordingly, it was held that the application under Order 21, Rule 106 was incompetent. In the result it was reiected.
4. Against that order this Court has been moved in revision. But an appeal has been provided for against such order in Order XLIII, Rule 1 (ja). It is argued on behalf of the petitioner that Order XLIII, Rule 1 (ja) will not be attracted because of the fact that the application under Order 21, Rule 106 has not been disposed of on merits but only on a preliminary point. There is hardly any distinction. The ultimate result is that the application under Order 21, Rule 106 was rejected; and such an order is appealable.
5. It is argued by the learned Advocate for the opposite party that the petitioner filed an appeal being F. M. A. T. 668 of 1981, challenging the order for police help dated 21st Feb. 1981 which was dismissed summarily, and the result is the order of the trial Court merged in the order of the Appeal Court. In the circumstances the petitioner should not be allowed to reopen the matter by an application under Order 21 Rule 106, C. P. C. Reliance is placed on the decision in the case of Smt. Jagatjanani Devi v. Smt. Jyotsna Basu, .
6. In any view of the matter, the petitioner cannot succeed by way of filing an application for revision which is incompetent. The Rule is accordingly discharged.
7. There would be no order as to costs.
8. Oral prayer for stay of operation of this order is rejected.