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2005 DIGILAW 374 (HP)

JOGINDER PAL v. BASAMBHARI DEVI

2005-10-05

V.M.JAIN

body2005
JUDGEMENT V. M. Jain, J.: This petition under Article 227 of the Constitution of India, has been filed by the petitioners, against the order dated 194.2005 passed by the Additional District judge, Ghumarwin. 2. The facts which are relevant for the decision of the present petition are that claiming disobedience to the decree dated 24.10.1978 passed by the trial Court, the D.H., namely Smt Basambhari Devi filed applications under Order 21 Rule 32 read with Section 151 CPC against the judgment debtors Joginder Pal etc. The said application was contested by the judgment debtors. After hearing both sides, the learned executing Court (Sub Judge 1st Class Ghumarwin) dismissed the said application, vide order dated 19.6.2003, holding that the decree holder and miserably failed to establish that the judgment debtors had defied the decree dated 24.10.1998 by encroaching upon a portion of the suit land. Aggrieved against the same, the decree holder filed appeal before the learned Addl. District Judge. It was submitted on behalf of the judgment debtors that no appeal against the order dated 19.6.2003 passed by the executing Court was maintainable. However, the learned Addl. District Judge after hearing both sides held that the appeal filed by the decree holder was very much maintainable. Therefore, after hearing both sides, the learned Addl. District Judge, vide judgment dated 19.4.2005 allowed the appeal, set aside the order of the executing Court and ordered and judgment debtors to be detained in civil prison for a period of two months and also ordered the attachment of their property till they stopped the interference, holding that they had wilfully disobeyed the decree dated 24.10.1998. Aggrieved against this judgment dated 19.4.2005 passed by the learned Addl. District Judge, the judgment debtors filed the present petition under Article 227 of the Constitution of India in this Court. 3. At the time when the petition came up for hearing before me on 31.8.2005. it was submitted before me by the learned counsel appearing for the petitioners judgment debtors that no appeal against the order dated 19.6.2003 passed by the executing Court was maintainable and that the learned Addl. District Judge had illegally held that the order passed by the executing Court was appealable. Resultantly, notice was issued to decree holder respondent No.1 and the records were also ordered to be requisitioned. 4. District Judge had illegally held that the order passed by the executing Court was appealable. Resultantly, notice was issued to decree holder respondent No.1 and the records were also ordered to be requisitioned. 4. When the petition came up for hearing before me on 29.9.2005 in the presence of the learned counsel of both the parties, the learned counsel appearing for respondent No.1 submitted before me that the he could not find out any provision in the Code of Civil Procedure or otherwise under which the order passed by the executing Court dismissing the application under Order 21 Rule 32 CPC could be challenged by way of appeal before the District Judge. However, he sought further time to study the question Accordingly, the case was adjourned to 5.10.2005 i.e. today. 5. I have heard learned counsel for the parties and have gone through the records carefully 6. The learned counsel appearing for the petitioners submitted before me that that there was no provision in the Code of Civil Procedure under which appeal could be filed and/or entertained against the order passed by the executing Court, dismissing the application under Order 21 Rule 32 CPC and that the learned Addl. District Judge had erred in law in holding that any such appeal was learned Addl. District Judge had erred in law in holding that any such appeal was maintainable. It was further submitted that since the appeal was not competent before the District Judge, the order passed by the learned Addl. District Judge accepting the appeal was liable to be set aside. The learned counsel appearing for the respondent No.1 D.H. could not point out any provisions under which the order passed by the executing Court, dismissing the application under Order 21 Rule 32 CPC was appealable. 7. When the point regarding maintainability of the appeal before the District Judge was considered by the learned Addl. District Judge. It was held by the learned Addl. District Judge that even though no appeal under Section 96 CPC was maintainable before the District Judge against the order dated 19.6.2003 passed by the executing court, dismissing the application under Order 21 Rule 32 CPC, yet the appeal was maintainable under Section 104 CPC and that mere mentioning of the appeal under Section 96 CPC in the head note of the appeal, instead of Section 104 CPC, would be of no significance. Holding that the appellant before him had wrongly mentioned Section 96 CPC whereas it should have been mentioned Section 104 CPC and mentioning of a wrong provision in the head note was no ground for dismissing the appeal, the learned Addl. District Judge further held that the appeal filed by the appellant before him was very much maintainable. 8. Under Section 96 CPC, appeals are maintainable from every decree passed by the trial Court exercising original jurisdiction. Under Section 104 CPC, it has been provided that an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders- (ff) an order under section 35-A; (ffa) an order under section 91 or section 92 refusing leave no institute Advocate(s): 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 civil 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. 9. Admittedly the order dated 19.6.2003 passed by the executing Court did not fall in any of the provisions referred to above in Section 104 CPC. The learned counsel appearing for the respondents No.1 D.H. could not point out any other provisions in the Code of Civil Procedure including Order 43 Rule 1 CPC and any other provision under Order 21 CPC which would make the order passed by the executing Court on the application under Order 21 Rule 32 CPC appealable to the District Judge. 10. Since the order passed by the executing Court dismissing the application under Order 21 Rule 32 CPC was not appealable either under Section 104 CPC or under any other provision of the Code of Civil Procedure or under any other law, in my opinion, the learned Addl. District Judge had erred in law in holding that the appeal filed by the decree holder against the order dated 19.6.2003 passed by the executing Court, dismissing the application under Order 21 Rule 32 CPC was appealable under Section 104 CPC (though not appealable under Section 96 CPC). District Judge had erred in law in holding that the appeal filed by the decree holder against the order dated 19.6.2003 passed by the executing Court, dismissing the application under Order 21 Rule 32 CPC was appealable under Section 104 CPC (though not appealable under Section 96 CPC). It appears that the learned Addl. District Judge had upheld the maintainability of the appeal under Section 104 CPC, without even going through the provisions of Section 104 of the CPC. If the learned Addl. District Judge had cared to go through the provisions of Section 104 CPC, in my opinion, the learned Addl. District Judge would not have held that the appeal was maintainable under Section 104 CPC, though not maintainable under Section 96 CPC. 11. Once it is found that the appeal against the order dated 19.6.2003 passed by the executing Court, dismissing the application under Order 21 Rule 32 CPC, was not maintainable before the District Judge, in my opinion, the learned Addl. District Judge, could not have accepted the appeal filed by the decree holder and could not have set aside the order passed by the executing Court, if holding that such an appeal was maintainable. That being so, in my opinion, the order dated 19.4.2005 passed by the learned Addl. District Judge, Ghumarwin District Bilaspur is liable to be set aside. 12. For the reasons recorded above, the present petition is allowed, order dated 19.4.2005 passed by the learned Addl. District Judge, Ghumarwin is set aside and it is held that the appeal filed by Smt. Basambhari Devi, decree holder before the District Judge against the order dated 19.6.2003 passed by the executing Court, was not maintainable before the District Judge.