SYNDICATE BANK, SARASWATHIPURAM, MYSORE v. B. ANURADHA
1998-07-03
H.N.TILHARI
body1998
DigiLaw.ai
H. N. TILHARI, J. ( 1 ) HEARD Sri g. v. thimmappaiah, learned counsel for the revisionist- petitioner, and Sri g. Sridhar for Sri g. Kasturi for respondents. ( 2 ) THIS revision petition under Section 115 of the CPC arises from the judgment and Order dated 24-8-1994 passed by the learned additional civil judge, mysore, whereby the learned civil judge has allowed the application moved by the present respondents 1 to 3 under Order 21, rule 58 of the CPC and has held that the property subject-matter of dispute in the proceedings which has been the subject-matter of attachment being the trust property, the said property could not be attached and in ordering the release of that property from being attached. In the course of arguments, a preliminary objection was raised by Sri sridhar that the revision is not maintainable because in view of Order 21, rule 58 (4), it has been provided that, an Order passed under Order 21, rule 58 shall have same force as that of decree and it shall also be subjected to appeal being maintained against it. Sri sridhar in this connection invited the attention of this court in the decision of Siddaramappa Rachappa Chiniwar and others v Shankaralingappa Veerappa Bilagi and others. ( 3 ) THIS preliminary objection has hotly been contested on be half of the petitioner. Learned counsel for the petitioner contended that the Order is not directly appealable to this court and therefore the revision is maintainable even if it is a decree. ( 4 ) I have applied my mind to the contentions raised by the learned counsel for the parties. It would be appropriate at this juncture to refer to the provisions of Order 21, rule 58. Order 21, rule 58 deals with adjudication of claims and objections to attachment of property. It reads as under: ( 5 ) A perusal of clause (4) of rule 58 clearly reveals that where any claim or objection has been adjudicated upon, the Order made thereon shall have the same force and be subject to same conditions as to appeal or otherwise as if it were a decree. It had been contended on behalf of the petitioner that in the definition of decree under Section 2 (2) an Order passed under Order 21 has not been included while one passed under Section 144 has been included.
It had been contended on behalf of the petitioner that in the definition of decree under Section 2 (2) an Order passed under Order 21 has not been included while one passed under Section 144 has been included. The definition clause defining the decree under Section 2 (2) of the ACT is subject to what has been expressed by use of expression "unless there is anything repugnant in the subject or the context". It means if there is anything otherwise provided under any provision of this code, then that may also be included and then this definition may not be operative as a binding. Further, we find the later portion of Section 2 (2) is an inclusive illustration of something and it shall be deemed to include rejection of claim and rejection of plaint under Section 144. It means where there is determination of question involved as to the rights of the parties and adjudication is not an Order in the nature from which appeal is permissible under Order 43, that Order may also be included in the decree and in every case where the provision itself declares a particular Order to amount to be a decree, it will also be included. Order 21, rule 58 (4) very clearly declares as mentioned earlier that where any claim or objection has been adjudicated upon, the Order made thereon shall have the same force of the decree and be subject to the condition of the appeal and other conditions. It means this provision i. e. , Order 21, rule 58 (4) by itself declares the Order made under Order 21, rule 58 to amount to be a decree and subject to conditions. Similarly is the provision under rule 103 of Order 21. In that rule also it has been provided 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 if it were a decree.
Similarly is the provision under rule 103 of Order 21. In that rule also it has been provided 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 if it were a decree. This court had the occasion to consider a case under rule 103 as well and when I so opined that such an Order is appealable and I find support from two earlier decisions of this court in the case of sidramappa rachappa, supra, Hon'ble n. Venkatachala as he then was, has been pleased to hold that, ( 6 ) THUS considered in my opinion, that the Order impugned amounts to a decree and the proper remedy for the applicant is to prefer an appeal under Section 96 as that order under Order 21, rule 58 (4) amounts to a decree and subject to right of appeal. Revision, as such, is not entertainable and revisional jurisdiction is not exercisable in view of Section 115 (1) and (2) of the CPC. Revision is hereby dismissed, but making it very clear that the remedy being available, he can approach the appellate court with an application for condonation of delay. --- *** --- .