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2001 DIGILAW 1309 (AP)

Jonna Ramu Naidu v. Kancherla Satyavatamma

2001-10-18

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) HEARD the Counsel on record mr. E. V. Bhagiratha Rao and Mr. K. Bhaskara Rao, the learned Counsel representing the respective parties. ( 2 ) THE Civil Revision Petition is filed as against an order made in A. S. No. 2 of 1998 on the file of the Additional District judge, Vizianagaram dated 22. 11. 2000. The appellants-Judgment-debtors in the said a. S. No. 2 of 1998 are the revision petitioners. The appeal is filed against an order passed by the learned Junior Civil Judge, kothavalasa in E. P. No. 38 of 1996 in o. S. No. 280 of 1988 (on the file of the district Munsif Court, S. Kota) dated 24. 11. 1997. The respondent in the Civil revision Petition, the decree holder, filed e. P. No. 38 of 1996 in O. S. No. 280 of 1988 under Order 21, Rule 32 of the Code of civil Procedure (for short the Code ) for removal of obstruction on the plaint schedule site as he had obtained a decree for both permanent injunction and mandatory injunction. The revision petitioners- judgment-debtors, after appearing before the court of first instance, filed a counter denying the allegations and had taken a stand that they had not violated the decree. ( 3 ) DURING the course of enquiry, on behalf of the respondent-Decree-holder, pws. 1 and 2 were examined and on behalf of the revision petitioners-Judgment-debtors, rws. 1 and 2 were examined and the Court of first instance had directed the revision petitioners-Judgment-debtors to remove the obstructions within two weeks and aggrieved by the said order, the revision petitioners had preferred A. S. No. 2 of 1998 on the file of the Additional District Judge, vizianagaram. The appellate Court had arrived at a conclusion that the appeal is devoid of merits and is liable to be dismissed observing that the appeal itself is not maintainable. ( 4 ) MR. E. V. Bhagiratha Rao, the learned Counsel representing the revision petitioners had contended that having observed that the very execution petition is barred by limitation, the Court below had totally erred in holding that the appeal is not maintainable that too after a long lapse of time. The Court below is not justified in adopting such method. E. V. Bhagiratha Rao, the learned Counsel representing the revision petitioners had contended that having observed that the very execution petition is barred by limitation, the Court below had totally erred in holding that the appeal is not maintainable that too after a long lapse of time. The Court below is not justified in adopting such method. The learned Counsel also had drawn my attention to the relevant dates and also had pointed out how the E. P. itself is not maintainable in view of the bar of limitation. ( 5 ) MR. K. Bhasakara Rao. , learned counsel for the respondent, on the contrary, had contended that the appellate Court had made certain unnecessary observations on the question of limitation since, when once the appellate Court came to the conclusion that the appeal itself is not maintainable, the other aspects should not have been considered at all. The learned Counsel also had stated that an order made under Order 21 rule 32 of the Code is not an appealable order and at the best the remedy is by way of a revision only. ( 6 ) SECTION 104 of the Code dealing with appeals from orders reads as follows: order from which appeal lies. 104. (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- (a) to (f) [ Omitted by Arbitration Act, 1940;] (ff) an order under section 35 A; (ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be; (g) an order under section 95; (h) an order under any of the provisions of this code imposing a fine or directing the arrest or detention in the prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules; provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section. (2) No appeal shall lie from any order passed in appeal under this section. ( 7 ) UNDER Order 43, Rule I of the code, only certain orders under Order 21 of the Code are appealable and not the other orders, i. e. the orders specified in Order 43, rule 1, (i), (j), and (ja ). The order passed under Order 21, Rule 32 of the Code is not a decree within the definition of decree under Section 2 (2) of the Code and hence no appeal lies as against such an order either under Order 41 or under Section 96 of the Code. ( 8 ) IN Challa Ramamwty v. Pasumarti adinarayana Sons Registered Firm, AIR 1985 AP 42 , it was held that an adjudication in execution proceedings is not a decree within the meaning of Section 2 (2) of the code as amended by Act 104 of 1976. In shivdhari Gope and others v. Anant Poddar and others, AIR 1971 Pat. 121 , it was held that an order passed under Order 21 Rule 32 of the Code for the alleged contravention of a decree is not appealable under Section 104 of the Code. ( 9 ) THE main grievance ventilated by mr. E. V. Bhagiratha Rao, the learned counsel representing the revision petitioners is that when the appeal itself is not maintainable, the appellate Court should have returned the papers forthwith instead of waiting for such a long lapse of time and, ultimately, dismissed the appeal on the ground that it is not maintainable. ( 10 ) IT is a case where the revision petitioners have been prosecuting a remedy before the appellate Court though appeal itself is not maintainable. The appellate court, instead of returning the papers, had made certain observations about the merits and dements of the matter. Inasmuch as the appeal itself is not maintainable, the appellate court, instead of straightaway dismissing the appeal as not maintainable, could have returned the papers to be presented to the proper Court i. e. , the revisional Court. The court below also should have taken into consideration that the matter was entertained by way of an appeal and was pending on its file for sufficiently a long time. The court below also should have taken into consideration that the matter was entertained by way of an appeal and was pending on its file for sufficiently a long time. Hence, in view of the facts and circumstances of the case, the impugned order is set aside and the appellate Court i. e. , the Additional District judge, Vizianagaram, is directed to return the papers pertaining to A. S. No. 2 of 1998 on its file to the revision petitioners herein i. e. the appellants in A. S. No. 2 of 1998, so as to enable them to present the same after complying with necessary formalities before the proper forum. The Civil Revision petition is allowed to the extent indicated above. ( 11 ) IT is also brought to my notice that this Court had granted interim stay and inasmuch as now a direction is given for return of papers to be presented to the proper Court i. e. the revisional Court, mr. E. V. Bhagiratha Rao, learned Counsel for the revision petitioners, apprehends that in the meanwhile further proceedings will be taken. Hence, further proceedings in pursuance of the said execution shall not be given effect to for a period of three months so as to enable the revision petitioners- appellants to have recourse to the remedy available to them in law. No order as to costs.