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Madhya Pradesh High Court

Khusiram Awasthy vs Sahab Singh on 18 August, 2011

 SPECIAL LEAVE PETITION PREFERRED AGAINST THE ORDER AND REGISTERED AS
  SLP(CIVIL) NO.27741/11 HAS BEEN DISMISSED BY THE APEX COURT 01.11.2011.



                  Review Petition No.361/2011
     18/8/2011


        Shri M.L. Choubey with Shri Niranjan Pathak, Advocates, for
the petitioner.
        Shri Deepak Kumar Khare, Advocate, for respondent no.1.

I.A. Nos.9114/2011 and 10045/2011 for taking certain facts on record are allowed.

Arguments heard.

This is a petition, under Order 47 Rule 1 read with Section 114 of the Code of Civil Procedure (for short 'the Code'), for review of the order dated 13.7.2011 passed in Second Appeal No.516/2011, dismissing the same as not maintainable in view of the specific bar created by Section 104 of the Code.

The appeal was preferred against the order-dated 05.04.2011 passed by Twelfth Additional District Judge, Jabalpur in Misc. Civil Appeal No.11/2010. By that order, the petitioner's appeal, under Order 43 Rule 1(ja) of the Code, against rejection of his objection to execution of the decree-dated 24.10.1994 passed in favour of the respondent no.1 and against the respondent no.2 in Civil Suit No.229-A/94, was dismissed. It was a decree for specific performance of a contract for sale of suit land whereas the objection was raised inter alia on the ground that the petitioner had been in a lawful possession thereof since 1979.

Learned counsel for the petitioner has strenuously contended that the order dismissing the second appeal is erroneous inasmuch as it is based on the premise that the order in question was passed in a Miscellaneous Appeal under Order 43 :: 2 ::

Rule 1(ja) of the Code whereas, in substance, it was a Regular Appeal against the order passed by the Executing Court upon his application moved under Order 21 Rule 97 of the Code, that, by virtue of Order 21 Rule 103, had the force of a decree. According to him, it was a mistake on the part of the counsel for the petitioner to prefer an appeal, under Order 43 Rule 1(ja) against the order, dismissing his objection instead of a Regular Appeal under Section 96 of the Code and there was mistake on the part of appellate Court as well in treating the appeal as a Miscellaneous Appeal ignoring the well-settled position of law as explained by a Division Bench of this Court in Dattatraya v. Mangal AIR 1983 MP 82. He is further of the view that in the aforesaid facts and circumstances of the case, this Court ought to have treated the appeal as a Second Appeal under Section 100 of the Code in view of the principle that a party should not suffer on account of mistake on the part of the counsel or the Court.

However, as rightly pointed out by learned counsel for the respondent no.1, fact of the matter is that the objection was rejected as not entertainable as a transfer pendente lite formed basis thereof.

A bare perusal of the order-dated 12.07.2006 passed by 3rd Civil Judge Class I, Jabalpur in the Execution Case No.229-A/94 would reveal that the objection was rejected for the reason that it was a collusive one as the decree was binding on the petitioner also whereas learned Additional District Judge, vide order-dated 05.04.2011 (above), also proceeded to uphold rejection of the objection, observing that in view of the provisions of Order 21 Rule 102, the petitioner, being a transferee pendente lite, had no :: 3 ::

right to raise objection or to offer resistance to the execution of the decree. For this, reliance was placed on decision of the Supreme Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust 1998 AIR SCW 1544 that has been reaffirmed in Usha Sinha v. Dina Ram AIR 2008 SC 1997.

As observed in Silverline Forum's case, the words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In this view of the matter, the order dismissing the appeal did not call for any interference.

This apart, the scope of review is very limited. As pointed out already, there is no error apparent on the face of record requiring reconsideration of the order-dated 13.7.2011 (supra). Moreover, there is no sufficient reason necessitating review of the order.

The petition, therefore, stands dismissed.

(R.C. MISHRA) JUDGE PK