Himachal Pradesh High Court
Reserved On : 04.07.2024 vs Smt. Shanti Devi And Others on 11 July, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
2024:HHC:5116 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 155 of 2011 .
Reserved on : 04.07.2024 Decided on: 11.07.2024 Sh. Om Prakash and others ...........Petitioners Versus Smt. Shanti Devi and others ...Respondents Coram The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes For the petitioners : Mr. Anand Sharma, Senior Advocate with Mr. Karan Sharma, Advocate.
For the respondent : Mr. N.K. Thakur, Senior Advocate with Mr. Divya Raj Singh, Advocate for respondents No. 1 to 12 and 14.
: Respondent No. 13 ex parte.
: Proforma respondents No. 16 and
17 ex parte.
Ajay Mohan Goel, Judge
By way of this civil revision filed under Section 115 of the Code of Civil Procedure, the petitioners have challenged the order passed by the Court of learned Additional District Judge (Fast Track Court), Chamba, District Chamba, H.P. dated 16.08.2011, in Civil Appeal No. 4 of 2010, titled as Rattan Chand and others vs. Om Parkash and others, in terms whereof, learned Additional District Judge, in an appeal filed under Section 96 of the Code of Civil Procedure before him, set aside the order passed by the Court of learned Executing Court, i.e. the Court of learned 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/07/2024 20:30:18 :::CIS 2Civil Judge (Sr. Divn.), Chamba, in CMANo. 248/2009/07 in Execution Petition No. 08/1998.
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2. Before proceedings further, it is necessary to mention that the facts that necessitated the filing of the present petition are as under:-
In an execution petition preferred by the decree holders, i.e. the contesting respondents before this Court, the objections under Section 47, read with Order 21, Rules 58 and Sections 97 and 151 of the Code of Civil Procedure, were preferred by the petitioners herein. The decree passed by the Court, execution of which was being sought, was passed by learned Sub Judge 1st Class, Chamba, District Chamba, H.P. on 05.01.1983, in Civil Suit No. 31 of 1982, titled as Rattan Chand and others vs. Ami Chand and others. The decree passed by the Court was for redemption of mortgage without payment of consideration amount to defendants No. 1 to 20 in favour of the plaintiffs, defendants No. 21 to 41 and against defendants No. 1 to 20. In the course of execution of the said decree, the objections in issue under Section 47 of the Code of Civil Procedure read with Order 21 and Rule 58 and 97 thereof were filed. The objections were in fact third party objections, as the contention of the objectors before the learned Executing Court was that they were in possession of the suit land and neither they nor their predecessor-interest were made party in ::: Downloaded on - 15/07/2024 20:30:18 :::CIS 3 the civil suit, therefore, the Court was not having any jurisdiction to give possession of the suit land to the decree holders.
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3. Feeling aggrieved, the Decree holders preferred an appeal under Section 96 of the Code of Civil Procedure. In terms of the impugned order, this appeal has been allowed. Feeling aggrieved by the order passed by learned first Appellate Court, the objectors have preferred this revision petition under Section 115 of the Code of Civil Procedure.
4. Learned Senior Counsel appearing for the respondents/Decree Holders has taken an objection with regard to the maintainability of this revision petition. He submitted that as the order under challenge was passed by learned Appellate Court under Section 96 of the Code of Civil Procedure, therefore, the present petition filed under Section 115 of the Code of Civil Procedure is not maintainable. Learned Senior Counsel after referring to the provisions of Order 21 of the Code of Civil Procedure in general and Rules 97 onwards thereof in particular, has argued that in terms of Rule 103 thereof, where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree and as the order passed by the learned Executing Court was under the said provisions, and as the same was challenged under Section 96 of the Code of Civil Procedure, therefore, the ::: Downloaded on - 15/07/2024 20:30:18 :::CIS 4 remedy before the revision petitioners was not under Section 115 of the Code of Civil Procedure but under Section 100 thereof.
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Learned Senior Counsel has also referred to the Full Bench judgment of Hon'ble High Court of Andhra Pradesh in Gurram Seetharam Reddy vs. Smt. Gunti Yashoda and another, AIR 2005 Andhra Pradesh 95, in support of his contentions and argued that as the revision petition is not maintainable, the same is liable to be dismissed.
5. On the other hand, learned Senior Counsel appearing for the revision petitioners has argued that as there was no judgment passed by learned Appellate Court and what it passed was an Order, therefore, the same was rightly challenged by way of a revision petition under Section 115 of the Code of Civil Procedure. Learned Senior Counsel submitted that Regular Second Appeal is maintainable against a judgment and decree passed by learned First Appellate Court and in this case, as no judgment and decree was passed by learned First Appellate Court, therefore, remedy available was only under Section 115 of the Code of Civil Procedure, which was rightly availed by the petitioners.
6. I have heard learned Senior Counsel appearing for the parties and have also carefully gone through the record of the case as well as the order under challenge.
7. As already mentioned by me hereinabove, the objections which were decided by learned Executing Court in the ::: Downloaded on - 15/07/2024 20:30:18 :::CIS 5 present case were third party objections. The objectors were not the party to the civil suit and in fact, specific stand before learned .
Executing Court was also to the effect that as they were in possession of the suit land, therefore, the decree was not executable as neither they nor their predecessor-in-interest were party in the civil suit.
8. Rule 97 of Order XXI of the Code of Civil Procedure, deals with resistance or obstruction to possession of immovable property. This Rule inter alia provides that where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of the property, he may make an application to the Court complaining of such resistance or obstruction and where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
9. Rule 101 of Order XXI of the Code of Civil Procedure, provides that all questions including the questions relating to right, title and interest in the property arising between the parties to a proceeding, on an application under rule 97 or 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 ::: Downloaded on - 15/07/2024 20:30:18 :::CIS 6 law for the time being in force, be deemed to have jurisdiction to decide such questions.
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10. In the backdrop of said provisions, it is further provided in Rule 103 of Order XXI of the Code of Civil Procedure that where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as it if were a decree.
11. Thus, in the light of the statutory provisions, but of course, the order that was passed by the learned Executing Court, in terms whereof, the objections were accepted and the execution petition was dismissed, was to be treated as if it were a decree.
12. In this background, the said order was rightly assailed by the Decree Holders under Section 96 of the Code of Civil Procedure before the learned Additional District Judge.
13. As the adjudication by the learned First Appellate Court was in an appeal under Section 96 of the Code of Civil Procedure, the order passed therein, could have been assailed only under Section 100 of the Code of Civil Procedure and revision petition under Section 115 of the Code of Civil Procedure was not maintainable.
14. The argument of learned Senior Counsel for the petitioners that because it was not a judgment and decree passed by learned First Appellate Court but was an order, therefore, the ::: Downloaded on - 15/07/2024 20:30:18 :::CIS 7 revision petition under Section 115 of the Code of Civil Procedure is maintainable, has no merit. Adjudication made by learned first .
Appellate Court under Section 96 of the Code of Civil Procedure is assailable only under Section 100 of the Code of Civil Procedure and filing of revision petition under Section 115 of the Code of Civil Procedure against the adjudication made by learned First Appellate Court under Section 96 of the Code of Civil Procedure, is thus not maintainable.
15. At this stage, it is relevant to refer to the Full Bench Judgment of Hon'ble High Court of Andhra Pradesh, in Gurram Seetharam Reddy vs. Smt. Gunti Yashoda and another, AIR 2005 Andhra Pradesh 95 (supra). Relevant paragraphs of said judgment are quoted herein below:-
"32. Once it emerges that an order passed under Rule 58 of Order 21 is conferred the status of a decree, in the particular context of appeal. Section 96 gets attracted. Section 96 does not enumerate the types of decrees that can fall into its fold. Once the outcome of adjudication partakes the character of a decree. It gains an entry into the realm of Section 96. The contention of the learned counsel for the petitioner that the appeals provided for under Section 96 are against original decrees and not other kinds of decrees is unacceptable. The word 'original in the heading of Section 96 signifies the jurisdiction. i.e. original jurisdiction in contradiction to appellate jurisdiction.::: Downloaded on - 15/07/2024 20:30:18 :::CIS 8
33. Section 104, on the other hand, is neither general, nor residuary in nature. It is only those orders, which answer the descriptions contained in its class, that are .
appealable under it. Section 104, as it stands now, provides for appeals against five categories of orders. There is no dispute that an order under Rule 58 does not fall into clauses (ff), (ffa). (g) and (h). An effort can certainly be made to bring it within the purview of clause (1) of sub-section (1), since it is an order made under a Rule. This effort would certainly have been successful, had the clause been "any order made under Rules", without anything further. The sub-
sequent part of the clause, which obviously refers to Order 43, C.P.C., restricts its scope. In none of the clauses contained in Rule 1 of Order 43, an order passed under Rule 58 of Order 21, finds place.
34. Further, if for any reason, the expression "an appeal expressly allowed by Rules" occurring in Clause (1) Section 104(1) can be taken as including Rule 58 of Order 21 in its fold, the fact that Rule 58(4) directs that the order passed under sub-rule (3) shall have the same force of a decree, for the purpose of appeal cannot be ignored. On account of it, the order passed under Rule 58 of Order 21 stands physically lifted from the purview of Section 104. CPC. While right to file a suit is a common law remedy, right of appeal is one, which has to be specifically provided for by a statute.
The procedure to be followed in filing the appeal as well as the forum to which it shall be presented, are to be specifically provided. This requirement becomes significant in the con text of different kinds of remedies provided in the form of appeals and revisions, in the ::: Downloaded on - 15/07/2024 20:30:18 :::CIS 9 enactments like CPC. Each remedy has its own significance as well as limitations. The Legislature is deemed to have taken the relevant factor into account, .
when it provides for a particular kind of remedy against the outcome of an adjudication. By the process of interpretation, such remedies can neither be restricted nor expanded.
35. When Section 96. CPC specifically provides for appeals against decrees, and sub-rule (4) of Rule 58 of Order 21 directs that the order passed under sub-rule (3) thereof shall have the force of a decree, there hardly exists any basis to deny such characteristics to such an order. An interpretation to the contrary would have the effect of setting at naught, the intention of the Parliament in attributing characteristics of a decree to an order. In view of a clear man date under sub-rule (4) of Rule 58, an order passed under sub-rule (3) thereof, partakes a character of a decree for all practical par poses, more so, in the context of availing the remedy of appeal. Same reasoning holds good for the orders passed under Rules 98 and 100 of Order 21, CPC. Hence, there does not exist any justification to treat the same as different, in any way from decrees, at least In the context of deciding the forum and provision for appeal. The question as to what nomenclature is to be given to the appeals needs to be dealt with by the High Court or the District Courts, on administrative side. Hence, we are of the view that the judgment of this Court in Nookaraju's case (supra) does not lay the correct proposition of law. Once it is held that orders passed under Rule 58(3) and Rules 98 and 100 of Order 21 CPC are appealable under Section 96, CPC. It ::: Downloaded on - 15/07/2024 20:30:18 :::CIS 10 is axiomatic that a second appeal is maintainable against the order passed in such appeals. Though this question is not referred to this Full Bench, it is dealt .
with, to put an end to the controversy and uncertainty.
42. For the foregoing reasons, we hold that:
(a) Against the orders passed under Rule 58(3) and Rules 98 and 100 of Order 21, CPC regular appeals under Section 96 and not miscellaneous appeals under Section 104 read with Order 43, Rule 1, CPC are maintainable and that the judgment of this Court in Nookaraju's case (supra) does not represent the correct position of law.
(b) the court fee payable on such appeals shall be the one calculated in accordance with Articles 11(i) or 3(i) of Schedule II of Court-fees Act, as the case may be read with Section 49 of the A.P. Court Fees and Suits Valuation Act.
(c) A second appeal under Section 100. CPC is maintainable against an order passed in an appeal, arising out of order passed under Rule 58(3) or Rules 98 and 100 of Order 21, CPC."
16. Thus, a perusal of the judgment of Full Bench of Hon'ble High Court of Andhra Pradesh leaves no room of doubt that the adjudication under Section 96 of the Code of Civil Procedure of an Order that has been passed under Rules 98 and 100 of Order XXI of the Code of Civil Procedure, has to be assailed under Section 100 of the Code of Civil Procedure and a Regular Second Appeal is maintainable against an Order passed in appeal.
::: Downloaded on - 15/07/2024 20:30:18 :::CIS 1117. Therefore, in view of above discussion, as this Court is of the considered view that the present petition filed under Section .
115 of the Code of Civil Procedure against an Order passed by learned first Appellate Court under Section 96 of the Code of Civil Procedure is not maintainable, the same is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.
CMP No. 10593 of 202418. By way of this application, a prayer has been made by the applicants for conversion of the revision petition into an appeal under Section 100 of the Civil Procedure Code.
19. In the revision petition, the arguments were heard on the maintainability of the revision petition on 03.07.2024 and order was reserved and it is thereafter that this application has been filed, which was taken on record and heard by the Court on 04.07.2024.
20. Learned Senior Counsel appearing for the applicants/revision petitioners submitted that the petition under Section 115 of the Code of Civil Procedure field by the applicants against the order passed by learned First Appellate Court under Section 96 of the Civil Procedure Code, is by mistake and as the mistake is a bonafide mistake of the Counsel of the petitioners, therefore, this application be allowed and the petition be converted ::: Downloaded on - 15/07/2024 20:30:18 :::CIS 12 into an appeal under Section 100 of the Code of Civil Procedure and decided by framing substantial questions of law.
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21. Incidentally, this application is not supported by any affidavit of the applicants but has been filed at the behest of learned Counsel after the arguments were heard and order was reserved on the maintainability of the revision petition.
22. Be that as it may, the revision petition filed under Section 115 of the Code of Civil Procedure has been dismissed by this Court today itself, as being not maintainable against the order passed under Section 96 of the Civil Procedure Code of the learned first Appellate Court. This Court is otherwise also not inclined to allow this application for conversion of the revision petition into a regular second appeal. This is for the reason that the objection raised by learned Senior Counsel for the respondents with regard to maintainability of the revision petition was hotly contested on behalf of the petitioners and the contentions of the learned Senior Counsel have been taken note of in the above order passed by this Court, dismissing the revision petition. Not only this, the order under challenge was passed by learned First Appellate Court on 16.08.2011. The adjudication of this revision petition by this Court had already taken about 13 years. There was enough time available with the petitioner to have had taken appropriate steps in this regard but till the time arguments were addressed on the maintainability of the revision petition, which objection of the ::: Downloaded on - 15/07/2024 20:30:18 :::CIS 13 respondents was strongly contested by the petitioners, no such request stood made. Therefore, the application being nothing but .
having been filed after a long delay of 13 years as an afterthought, cannot be allowed and the same is accordingly dismissed.
(Ajay Mohan Goel)
July 11, 2024 Judge
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