Jharkhand High Court
Jogendra Kaur @ Jogendra Kaur vs Kali Prasad @ Kalu Prasad on 3 February, 2003
Equivalent citations: AIR2003JHAR67, [2003(2)JCR149(JHR)], AIR 2003 JHARKHAND 67, 2003 (9) SCC 464, 2003 AIR - JHAR. H. C. R. 870, (2003) 2 JCR 149 (JHA), (2003) 3 CRIMES 282, (2003) 3 CURCRIR 132, (2003) 10 ALLINDCAS 375 (SC), (2003) 3 RAJ CRI C 763, 2003 CHANDLR(CIV&CRI) 220, (2003) 3 EASTCRIC 129, (2004) 1 UC 43, (2003) 2 JLJR 71, (2003) 2 BLJ 42, (2003) 2 CURCC 147, (2003) 6 SCALE 284, (2003) 10 INDLD 56, (2003) 5 SUPREME 462, (2003) 3 ALLCRIR 2665, (2003) 26 OCR 443, (2003) 2 ANDHLT(CRI) 305, (2003) 7 JT 139 (SC), (2003) 10 ALLINDCAS 375
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This appeal has been listed for hearing on the preliminary question of maintainability of this Second Appeal
2. I have heard Mr. N.K. Prasad, learned counsel for the appellant.
3. This appeal has been filed under Section 100 read with Order XXI, Rule 103 of the C.P.C. challenging the Judgment dated 23.8.2002 passed by 1st Additional District Judge, Jamshedpur in Misc. Appeal No. 3/1984 whereby he has dismissed the appeal and confirmed the order dated 19.11.83 passed by Munsif, Jamshedpur in Misc. Case No. 26/77.
4. It appears that respondent No. 1 Kali Prasad filed an application under Order XXI, Rule 99, C.P.C. in Execution Case No. 280/70 for putting him in possession of the house being Holding No. 431 alleging inter alia that he was illegally dispossessed from the said house in consequence of writ of delivery of possession in Execution of a decree. The case of the respondent is that the house in question belonged to one Bhima Gorai respondent no.2 who sold the holding by registered sale deed dated 6.6.66 in his favour and delivered possession of the same and since then he has been residing with his family members. On 25.4.77 he alongwith his family members were forcibly dispossessed with the help of police when he was on duty. The said application of respondent no. 1 was registered as Misc. Case No. 26/77. The Executing Court on the basis of evidence both oral and documentary adduced by the parties determined and decided the claim in favour of respondent No. 1 and passed judgment and order dated 19.11.83.
5. Aggrieved by the said judgment and order the present appellant filed appeal before the District Judge, Singhbhum East which was registered as Misc. Appeal No. 3/ 84. The said appeal was finally heard by 1st Additional District Judge, Jamshedpur who by the impugned judgment dismissed the appeal and affirmed the judgment and Order passed by the Executing Court namely, Munsif Jamshedpur. Hence this Second Appeal.
6. The question therefore that falls for determination is though under the provision of Order XXI. Rule 103 appeal lies to the appellate court, whether a Second Appeal also lies which is not expressly conferred under the said provision. The answer to this question can be arrived at on the construction of the relevant provisions of the Code.
7. Order XXI, Rule 99 provides that where any person other than the judgment debtor is dispossessed of immovable property by the holder of a decree such person may make an application to the court complaining of such dispossession. Sub-rule (2) provides that where such an application is made the court shall proceed to adjudicate upon the application in accordance with the provisions contained in the Code. Rule 101 of Order XXI provides that all questions "including question relating to right title or interest in the property" on an application under Rule 97 or Rule 99 shall be determined by the Court dealing with the application and not by a separate suit. For better appreeiation Order XXI, Rule 101. C.P.C. is quoted here in below:--
"Question to be determined.--All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 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 law for the time being in force, be deemed to have jurisdiction to decide such questions."
8. Rule 100 provides that on determination of such question court shall make an order allowing application and directing that applicant be put in possession of the property or dismiss the application. Such adjudication and determination under Rule 98 or Rule 100 shall be treated as a decree. Order XXI, Rule 103 is worth to be quoted herein below:--
"Orders to be treated as decrees: 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 condition as to an appeal or otherwise as if it were a decree."
9. From going through the aforementioned provisions it is clear that in order to prevent protraction of litigation provision has been made that all question relating to right title and interest of a person dispossessed in execution of a decree shall be adjudicated by the same court on an application and not by way of a regular suit. This is the reason the order by which such claim is determined has been given the force of a decree and shall be subject to appeal before the higher court.
10. At the very outset. I am of the opinion that since Order XXI, Rule 99, C.P.C. is an exhaustive remedy and the order passed determining right, title and interest of the party is a decree without restricting any further right of appeal, aggrieved party is entitled to further appeal under the Code. viz. Second Appeal. In order to fortify my view, I would like to refer some of the decisions given by the Privy Council.
11. In the case of Secretary of State of India v. Chellikani Rama Rao and Ors.. AIR 1916 PC 21. a similar question arose under the Madras Forest Act. 1882. Under the said Act there is a provision of appeal against the order of the settlement Officer where claim of the private party is rejected in respect of forest land but no further appeal is provided to the High Court. The High Court entertained civil appeal against the judgment of the District Judge. When the matter was carried to the Privy Council against the Judgment of the High Court the appellant therein raised objection that all proceedings in the High Court against the judgment of the District Judge are incompetent as no appeal was conferred under the Statute to the claimant. Lord Shaw who delivered the judgment overruled the said contention and held as under:--
"What happened in the present case was that the claim was rejected. An appeal by the respondents was thereupon made to the District Court and a decision was pronounced. It was contended on behalf of the appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the Statute just quoted. In their Lordships' opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedures, orders, and decrees the ordinary rules of the Civil Procedure Code apply. This is in full accord with the decision of the Full Bench, Kamaraju v. Secretary of State a decision which was given in 1888 and has been acted on in Madras ever since."
12. In the case of Maung Ba Thaw and Anr. v. Ma Pin, AIR 1934 PC 81, a similar question arose under the Provincial Insolvency Act. According to Section 75 of the Provincial Insolvency Act, the order of the District Judge is made final subject to the limited right of appeal given to the High Court. Examining the question of right of further appeal Lord Thankerton observed :--
"The respondent raised a preliminary objection to the competency of the present appeal, maintaining that under Section 4(2). Provincial Insolvency Act, the decision of the District Court was final, subject only to a limited right of appeal to the High Court under Section 75(2), any right of further appeal being thereby excluded. But in their Lordships' opinion this objection is not maintainable, in view of the decision of this Board in Secretary of State v.
Chelikani Rama Rao at p. 197 (of 43 LA), in which a similar objection was taken in respect of the provisions of the Madras Forest Act of 1882, and it was held that, when such a right of appeal is given to one of the ordinary courts of the country, the procedure, orders and decrees of that Court will be governed by the ordinary rules of the Civil Procedure Code."
13. Consequently his lordship held that appeal to the Privy Council is therefore maintainable from the decision of the High Court under Section 75 of the said Act.
14. Similar question again came for consideration before the Full Bench of the Patna High Court in the case of Ramlal Sahu and Ors. v. Mt Ramia and Anr., AIR 1947 Pat 454 (FB) their lordships held that second appeal does lie to High Court arising out of order passed under Order XXI, Rule 90, C.P.C. their lordships observed :
"As held in 6 Pat LJ 319, although no second appeal lied from on order passed under Order XXI, Rule 90, on an application under that rule to set aside a sale on the ground of irregularity or fraud in publishing or concluding the sale yet if the application is also based on fraudulent suppression of the notice required by Order XXI, Rule 22 a second appeal does lie, and in that appeal the High Court is competent to deal with the application under Rule 90. The present appeal is, therefore, competent. As an appeal lies, the application in revision is incompetent The result, therefore, is that the appeal succeeds and is allowed, the decision of the learned District Judge is set aside and that of the learned Subordinate Judge is restored. The appellants would be entitled to their costs throughout. The application in revision is incompetent, and is dismissed."
15. In the case of R.M.A.R.A. Adaikappa Chettiar and Anr. v. R Chandrasekhara Thevar, AIR 1948 PC 12, while considering a similar question Lord Simond observed :
"The true rule is that where a legal right is in dispute and the ordinary Court of the country are seized of such dispute the Courts are governed by the ordinary rules of procedures applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal : see 43 LA. 192 and 63 LA. 180"
16. As noticed above, the right of appeal is conferred by the very provision of Order XXI. Rule 103, CPC itself which says that the order passed on adjudication shall have the same force and subject to the same conditions as to appeal as if it were a decree. In my opinion, therefore, the ordinary rules of Civil Procedure will apply and the aggrieved party shall have further right of appeal, viz. Second Appeal.
17. Hence this Second Appeal is maintainable. Second Appeal Maintainable.