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2016 DIGILAW 3129 (PNJ)

Kanwar Pal v. Mansa Ram

2016-11-07

REKHA MITTAL

body2016
JUDGMENT : REKHA MITTAL, J. 1. The present appeal has been directed against order dated 24.01.2014 (Annexure P1) passed by the Additional District Judge, Ambala whereby the appeal preferred by the appellant against order dated 03.12.2013 passed by the Civil Judge (Jr. Division) Ambala has been dismissed on the solitary ground of the same being not maintainable. 2. Counsel for the appellant has submitted that Kanwar Pal - appellant filed a suit for possession by way of specific performance of agreement to sell dated 20.11.1997 that was decreed vide judgment and decree dated 16.03.2004. In pursuance of the decree dated 16.03.2004, the petitioner filed an application for execution in which warrants of possession were issued. Brij Bhushan and others (respondents No.2 to 8) filed third party objections by invoicing the provisions of Order 21, Rule 99 ,100,101 and 103 read with Sections 47 and 151 of the Code of Civil Procedure (in short 'CPC") and the same were allowed by the Executing Court vide judgment dated 03.12.2013. The petitioner/decree-holder preferred civil miscellaneous appeal No.7 of 2014 against the order dated 03.12.2013 passed by the Executing Court but the same has been wrongly dismissed by the Court of appeal by holding that the appeal is not maintainable. It is vehemently argued that the Appellate Court failed to appreciate the provisions of Order 21, Rule 103 CPC in right perspective, therefore, misdirected itself by holding that the appeal is not maintainable. In support of his contention, he has referred to judgment of this Court "Jaspal Singh s/o Phuman Singh v. Punjab Wakf Board, Ambala..Cantt. through its Estate Office, Phagwara", 2013(1) RCR (Civil) 585. 3. Counsel for the contesting respondents, on the contrary, has supported the impugned order with the submission that as the objection petition preferred by the respondents was allowed and the execution petition was dismissed, the only remedy available with the petitioner was to file a revision petition before this Court, in accordance with law. 4. I have heard counsel for the parties and perused the paper book particularly the order impugned. 5. It is an undisputed position of the case that the contesting respondents - Brij Bhushan and others filed third party objections against execution of the decree passed in favour of the petitioner and against Mansa Ram - respondent No.l and the objection petition was decided in their favour vide order dated 03.12.2013. 6. 5. It is an undisputed position of the case that the contesting respondents - Brij Bhushan and others filed third party objections against execution of the decree passed in favour of the petitioner and against Mansa Ram - respondent No.l and the objection petition was decided in their favour vide order dated 03.12.2013. 6. Rule 103 Order 21 says that where any application has been adjudicated upon under rule 98 or 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. 7. Keeping in view the clear provisions of Rule 103 Order 21 CPC and the judgment passed by this Court in Jaspal Singh's case (supra), neither the impugned order can be allowed to sustain nor contention raised by counsel for the contesting respondents that the appropriate remedy with the petitioner was to file a revision petition before this Court against order dated 03.12.2013 is tenable. Conversely, as the order passed by the Executing Court deciding the objection petition preferred by a third party is to be treated as a decree of the Court, the appropriate remedy is to file an appeal before the Court of District Judge. That being so, the impugned order is liable to be set-aside and ordered accordingly. 8. For the foregoing reasons, the appeal is allowed, the impugned order dated 24.01.2014 is set-aside and the matter is remitted to the Appellate Court for decision of the appeal afresh, in accordance with law. The Appellate Court is directed to decide the appeal within a period of 03 months from the parties putting in appearance. The parties through their counsel are directed to appear before the Appellate Court on 30.11.2016.