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Calcutta High Court · body

2010 DIGILAW 593 (CAL)

Ajoy Kumar Shaw v. Uttam Kumar Shaw

2010-06-09

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. THE petitioners' application under Order Rules 98 to 101 of the Code of Civil Procedure was rejected by the learned Executing Court on contest. 2. THE petitioners were aggrieved by the said order. Hence the petitioners preferred an appeal being Misc. Case No. 9 of 2010 before the learned Additional District Judge at Sealdah. THE learned Appeal Court refused to admit the said appeal by holding, inter alia that no appeal lies against such an order under Order 43 of the Code of Civil Procedure. Accordingly, the petitioners' said appeal was not admitted for hearing by the learned Appeal Court. The petitioners are aggrieved by the said order. Hence, they have come before this Court with this application under Article 227 of the Constitution of India. 3. LET me now consider as to how far the learned Appeal Court was justified in passing the impugned order in the facts of the instant case. 4. HEARD the learned Advocate of the parties. Considered the materials on record including the order impugned. For ascertaining as to whether an order rejecting the petitioners' application under Order 21 Rules 98 to 101 of the Code of Civil Procedure is appealable or not, this Court is required to consider the entire scheme laid down in different provisions of Order 21 of Civil Procedure Code starting from Order 21 Rule 97 to Order 21 Rule 106 of the Code of Civil Procedure Order 23 Rule 97 of the Code of Civil Procedure contemplates that where the holder of a decree for possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. 5. IT is further provided therein that where any application is made under Sub-Rule 1 of Order 21 Rule 97, the Court shall proceed to adjudicate upon the application in accordance with the provision contained therein. 6. HERE of course, the decree holder has applied for police help in aid of execution of the decree. 5. IT is further provided therein that where any application is made under Sub-Rule 1 of Order 21 Rule 97, the Court shall proceed to adjudicate upon the application in accordance with the provision contained therein. 6. HERE of course, the decree holder has applied for police help in aid of execution of the decree. The judgment debtors expressed their intention to obstruct the execution of the said decree by filing an application under Order 21 Rule 98 to Rule 101 of the Code of Civil Procedure claiming therein his right in respect of the suit property which according to them still remains unaffected by the said execution decree. Order 21 Rule 101 of the Civil Procedure Code provides that if such an application is filed by the judgment debtor, all questions relating to his right and/or interest in the suit property is required to be considered by the Executing Court as per the provision contained therein and the said provision further makes it clear that an independent suit for the same purpose is also barred. Order 21 Rule 98 of the Code of Civil Procedure provides that upon determination of the questions referred to in Order 21 Rule 101 of the Code of Civil Procedure, the Court shall, in accordance with such determination and subject to the provisions of Sub-Rule (2),- a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or b) pass such other order as, in the circumstances of the case, it may deem fit. (2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shaft direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. 7. 7. HERE of course it is not a case where the petitioners were dispossessed from the suit premises and an application was filed by them for restoration of their possession. HERE the petitioners claim that they are still in possession of the suit property but since an application for grant of police help was filed by the decree holder for evicting the petitioner from the suit property without obtaining any eviction decree against them, they filed the said application for protecting their possession therein on determination of their right in the suit property. The said application is still awaiting considering before the learned Executing Court. Pending consideration of the decree holder's prayer for police help, the petitioners' application under Order 21 Rules 98 to 101 of the Code of Civil Procedure was rejected. 8. SUCH rejection order, in my considered view, was passed by the learned Executing Court as per the provisions contained in Order 21 Rule 98 of the Code of Civil Procedure. Order 21 Rule 103 of the Code of Civil Procedure makes it clear that where any application has been adjudicated upon under Rule 98 and Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. 9. THUS, the ultimate order which was passed under Order 21 Rule of the Code of Civil Procedure is a deemed decree within the meaning of Order 21 Rule 103 of the Code of Civil Procedure and such deemed decree is subject to appeal as per Order 21 Rule 103 of the Code of Civil Procedure, since the said order amounts to deemed decree, regular appeal will not lie, but a miscellaneous appeal will lie against such deemed decree as per Order XXI Rule 103 of the Civil Procedure Code, even though Order 43 of the Civil Procedure Code does not provide for such an appeal. 10. IN such view of the fact, this Court is unable to agree with the conclusion arrived at by the learned Appeal Court to the effect that such an order passed under Order 21 Rule 98 of the Code of Civil Procedure is not appealable. Accordingly, the impugned stands set aside. 10. IN such view of the fact, this Court is unable to agree with the conclusion arrived at by the learned Appeal Court to the effect that such an order passed under Order 21 Rule 98 of the Code of Civil Procedure is not appealable. Accordingly, the impugned stands set aside. The learned Appeal Court is thus, directed to admit the said appeal for hearing and dispose of the same on its own merit as early as possible but preferably within a period of 4 months from the date of communication of this order without granting any unnecessary adjournment to any of the parties.