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2006 DIGILAW 260 (CAL)

ADHAR CHANDRA PORIA v. RADHA RANI PANJA

2006-04-28

BHASKAR BHATTACHARYA, PRAVENDU NARAYAN SINHA

body2006
( 1 ) THIS Second Miscellaneous Appeal is at the instance of a third party in proceedings under Order 21 Rule 97 of the Code of Civil Procedure and this appeal is preferred against an appellate order dated November 8,2005 passed by the learned District Judge, Howrah in Title Appeal No. 112 of 2005 thereby affirming the Order No. 24, dated July 30, 2005 passed by the learned Civil judge (Junior Division) 1st Court at Uluberia in Misc. Case No. 59 of 2004 arising out of Title Execution Case No. 3 of 2004. ( 2 ) THE decree holder -respondent No. 1 started an execution case being Title Execution Case No. 3 of 2004 before the learned Civil Judge (Junior Division), 1st Court at Uluberia for enforcing a decree passed in Title suit No. 188 of 1999 against the respondent No. 2 and in such execution case, the present appellant, came up with an application under Order 21 Rule 97 of the Code of Civil Procedure alleging that he had independent title to the property and was not bound by the decree passed in favour of the respondent No. 1 against the respondent No. 2. ( 3 ) THERE is no dispute that even prior to initiation of the Title Execution case No. 3 of 2004 by the respondent No. 1 against the respondent No. 2, the present appellant had already filed an independent suit being Title Suit No. 161 of 2003 before the learned Civil Judge (Junior Division), Uluberia for establishing his title over the selfsame property and the said suit is still pending. ( 4 ) THE learned executing Court turned down the objection raised by the third party and passed an order of eviction with the help of police in favour of the respondent No. 1. ( 5 ) BEING dissatisfied, the present appellant preferred an appeal before the learned first appellate Court below and by the order impugned herein the said Court has affirmed the one passed by the learned executing Court. ( 6 ) BEING dissatisfied, the third party has came up with the present second Miscellaneous Appeal. ( 7 ) AT the very outset, a pure question of law has arisen before us as to whether an appeal is at all maintainable against an adjudication under Order 21 rule 101 of the Code of Civil Procedure where an earlier suit at. ( 7 ) AT the very outset, a pure question of law has arisen before us as to whether an appeal is at all maintainable against an adjudication under Order 21 rule 101 of the Code of Civil Procedure where an earlier suit at. the instance of the selfsame third party is pending at the time of initiation of the execution proceeding. ( 8 ) IF such adjudication is not appealable in terms of Order 21 Rule 103 of the Code, in that case, it was the duty of the learned first appellate Court below not to enter into the merit of adjudication of the executing Court, but to straightway dismiss the appeal as not maintainable. ( 9 ) MR. Roy Chowdhury, the learned Senior Advocate appearing for the appellant has laboriously contended before us that if we go through the provisions right from Order 21 Rule 97 to Rule 103 of the Code, there will be no hesitation in concluding that an adjudication in terms of Order 21 Rule 101 is an appealable one as if it were a decree even if an earlier suit at the instance of the third party was pending at the time of initiation of the execution proceedings. ( 10 ) MR. Roy Chowdhury contends that once the case comes within the purview of Rule 103 of Order 21 of the Code, a Court cannot by taking into consideration the later provision, namely, Rule 104 of Order 21 of the Code, can take away the right of appeal conferred upon his client by virtue of Rule 103 of Order 21 of the Code. ( 11 ) MR. Roy Chowdhury, thus, contends that a First Miscellaneous Appeal before the learned First Appellate Court below was very much maintainable and consequently, his client is also entitled to prefer the present Second miscellaneous Appeal. ( 12 ) AFTER hearing Mr. Roy Chowdhury and after going through the provisions contained in Order 21 of the Code, we find that after amendment of the Code of Civil Procedure in the year 1976, an adjudication at the instance of a third party which comes within the purview of the Order 21 Rule 98 or order 21 Rule 100 has been made appealable by enacting Rule 103 of the said Order. However, in the very next Rule, namely, Rule 104, it has been specifically made clear that every order made under Rule 101 or Rule 103 of the Order shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made if in such a suit, the party against whom an order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property. ( 13 ) MR. Roy Chowdhury, however, has fairly conceded that in view of pendency of a suit filed by his client prior to initiation of the present execution case, Rule 104 of Order 21 is squarely applicable; but he maintains that notwithstanding such fact, the adjudication made by the executing Court would nevertheless be appealable. ( 14 ) IN support of such contention, Mr. Roy Chowdhury relies upon two decisions of different Division Benches of this Court, one in case of Surajmal jain v. Prabir Kumar Sett, reported in (1980)2 Cal LJ 161 and the other, in case of Deba Prosad Mazumdar v. Man Mohan Mazumdarand Ors, reported in (1997)1 Cal HN 495. ( 15 ) WE are afraid, we are unable to accept the contention of Mr. Roy chowdhury. ( 16 ) IN our opinion, the provisions contained in Rule 104 of Order 21 should be taken to be the proviso to Rule 103 of Order 21; in other words, all orders which come under Order 21 Rule 103 of the Code will be appealable as if those were decrees provided those cases do not come within the purview of rule 104 of Order 21. The moment it is established that the case comes squarely within the purview of the provisions of Rule 104 of Order 21 of the code, the adjudication under Order 21 Rule 101 or Order 21 Rule 103 of the code loses its finality. If an order does not conclusively determine the right of the parties, the same cannot, at any rate, amount to decree within the meaning of Section 2 (2) of the Code. If an order does not conclusively determine the right of the parties, the same cannot, at any rate, amount to decree within the meaning of Section 2 (2) of the Code. There is also no dispute that the order impugned herein is not an order within the meaning of Section 104 of the Code, and, as such, the same cannot be termed as an appealable order within the meaning of the Code. ( 17 ) IT is now settled law that an appeal is a creature of statute and unless there is specific provision conferred by the statute thereby giving a right of appeal in favour of a party, such party cannot avail of the right of appeal. ( 18 ) IN the case before us, we have already pointed out that the moment the present case comes within the purview of Rule 104 of Order 21, the same being an exception to the provisions contained in Rule 103 of the Code, the right of appeal is not available to a litigant. ( 19 ) WE now proceed to deal with the decisions cited by Mr. Roy chowdhury. ( 20 ) IN the case of Surajmaljain (supra), the question before the Division bench was whether an adjudication under Order 21 Rule 103 of the Code should be treated as a decree and consequently, appealable as regular First appeal. In the said appeal further question was what would be the appropriate court fees payable on the memorandum of such appeal and whether any such appeal was required to be heard under Order 41 Rule 11 of the Code. The division Bench came to the conclusion that such adjudication should be treated to be a "deemed decree", and, as such, against such deemed decree, a First miscellaneous Appeal was required to be filed and consequently, fixed Court fees were payable. It was further held that according to the Appellate Side rules, since a First Miscellaneous Appeal should be placed for hearing under order 41 Rule 11 of the Code, the said appeal should face hearing under order 41 Rule 11 of the Code as the same did not come within the exceptions mentioned in the Appellate Side Rules. It was further held that according to the Appellate Side rules, since a First Miscellaneous Appeal should be placed for hearing under order 41 Rule 11 of the Code, the said appeal should face hearing under order 41 Rule 11 of the Code as the same did not come within the exceptions mentioned in the Appellate Side Rules. ( 21 ) BEFORE the said Division Bench, the question involved herein was not raised, nor was any suit pending as in the present case, and, as such, in our view, principles laid down in that decision cannot have any application for the purpose of deciding the question we face herein. ( 22 ) IN the other case, that is, in the case of D. P. Mazumdar (supra), the Division Bench simply was considering the effect of amendment of the code of Civil Procedure in the year 1976 on the question whether a third party to a decree for possession could file an independent suit when so such suit was pending at the inception of the execution proceeding and in such a case, came to the conclusion that the remedy lay only by filing an application under section 47 or under Order 21 Rule 97 of the Code. ( 23 ) WE do not dispute for a moment the proposition laid down by the said Division Bench, but the said principle has no application to the fact of the present case where the third party had already filed a suit before the commencement of the execution case, and, as such, the said decision cannot help Mr. Roy Chowdhury's client in any way. ( 24 ) WE, thus, find that against the adjudication of the executing Court which is not final and which is subject to the ultimate decree of the pending suit filed by the present appellant, no appeal was maintainable before the learned first appellate Court below and the learned first appellate Court below should not have entered into the merit of the appeal, but ought to have dismissed the appeal simply as not maintainable. ( 25 ) WE, thus, dismiss the appeal with the aforesaid observation. ( 25 ) WE, thus, dismiss the appeal with the aforesaid observation. ( 26 ) WE make it clear that we have not gone into the merit of the adjudication by the executing Court and dismissal of the present appeal will not stand in the way of the appellant in seeking his appropriate remedy before the appropriate forum in accordance with law. ( 27 ) SINCE the order of police help has already been given, we stay the operation of the order granting police help by the executing Court for ten days from today to enable him to approach the appropriate forum against this order in accordance with law. .