Chouthmal vs Sunderlal and others

A.G. Qureshi, J.

This order shall govern the disposal of Misc. Second Appeal No. 194 of 1990 and Misc. Second Appeal No. 195 of 1990 filed against the order dated 2-5-1990 passed by the Second Additional Judge to the Court of the Disrict Judge, Mandsaur, in Civil Misc. Appeal No. 38 of 1989 (C.R.A. No. 17-A/1990) and Civil Misc. Appeal No. 37 of 1989 (C.R.A. No. 16-A/1990) confirming the order dated 2-5-1989 passed by the Civil Judge, Class II, Mandsaur in Execution Case No. 437-A/82 � 85.

The facts of the case are that the house belonging to Respondent No. 1 Sunderlal, Respondent No. 2 Surajmal and Respondent No. 3 Kiranmal was mortgaged to Respondent No. 4 Tahir Ali on 2-1-1963 for Rs. 3,500/- by executing a mortgage deed. Another mortgage deed was executed on 5-3-1965 and Rs. 1,200/- were taken by the mortgagors. A suit for redemption of the mortgage was filed by Respondents Nos. 1, 2 and 3 and a decree was passed in favour of Respondents Nos. 1, 2 and 3 on 16-1-1985. Thereafter the execution was filed by the decree-holders which was registered as Execution Case No. 437-A/82 � 85. The present two Appellants filed objetions in that execution case but the objections were dismissed by the Court after recording the evidence vide order of the Civil Judge Class II, Mandsaur dated 2-5-1989. Aggrieved by the order passed by the Civil Judge Class II, Mandsaur, the two Appellants preferred misc. appeals and alternatively civil revisions. The Misc. Appeal of Bherulal was registered as Misc. Appeal No. 37 of 1989 and alternate Civil Revision No. 16-A of 1990 and Misc. Appeal of Chouthmal was registered as Misc. Appeal No. 38 of 1989 and alternate Civil Revision No. 17-A of 1990. However, by a common order, the Additional Judge to the Court of the District Judge, Mandsaur dated 2-5-1990 dismissed the appeals/revisions. It is against this order that the Misc. Second Appeals have been filed.

According to Shri Saxena, learned Counsel for the Appellants, Misc. Second Appeal lies against the impugned order of the lower Court. According to Shri Saxena, as per Rule 3 of Chapter IV Note of the High Court Rules, all the appeals have to be classified as either first appeal, second appeal or misc. appeal. First appeal and second appeal refer to appeals from original and appellate decrees respectively; all appeals from orders including those u/s 47 of the CPC Code, whether original or appellate are classified as Misc. Appeals. As such, whereas the nomenclature of first and second appeal is of only those appeals which are from the decrees but the misc. appeal nomenclature covers all the residual class of appeall in civil proceedings whether from the CPC under Order 43, Rule 1, CPC or from the execution branch which are made appealable by a fiction describing those orders to be decrees. According to Shri Saxena even after the amendment in the Civil Procedure, the definition of Section 2(2), CPC covers various orders including those passed under Order 21, Rule 58(4) and Order 21, Rule 103, CPC Code. As such, Misc. Appeal classification embraces all other appeals under various enactments like Hindu Marriage Act, Indian Succession Act, Motor Vehicles Act. Actually the word ''second'' added in the heading of the appeal is for the purpose of clarifying the fact that this appeal is a second appeal, although it is a misc. appeal and the second appeal is tenable being against a decree because the orders passed under Order 21, Rules 98 to 101, CPC are deemed to be decrees. It has further been argued that althuogh the present Appellants are not the parties in the decree, but the Appellants being in possession of the suit premises as tenants of the decree-holder and on their application the executing Court investigated the claim of the Appellants. As such, the investigation could be possible only under Order 21, Rule 97(2) of the CPC and as such the order shall be deemed to have been passed under Order 21, Rule 98 after recording the evidence of both the parties. The Respondents have joined in the proceedings, and, therefore, they cannot now make a submission that the order has not been passed under Order 21, Rule 98, CPC Code.

On the other hand, the learned Counsel for the Respondents Shri Nigam argued that there is no nomenclature in the High Court Manual showing misc. second appeal and no misc. second appeal can, therefore, lie before the Court. The argument that the provisions of Order 21, Rule 97 or 98, CPC are applicable to the facts of the present case is also without any basis because on the application of the person who is not a party to the decree enquiry under the aforesaid provision is not contemplated under the law. This fact has been also very elaborately considered by the Full Bench of this Court in Usha Jain and Ors. v. Manmohan Bajaj and others, 1980 MPLJ 623. As such the order of the executing Court cannot be treated as a decree and, therefore, no second appeal lies against such order.

In my opinion, both these appeals are not tenable and, therefore, they deserve to be dismissed for the following reasons: Order 21, Rule 97, CPC entitles a decree-holder or an auction-purchaser of any such property sold in execution of the decree if resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction and where such an application is made the Court shall proceed to adjudicate upon the application in accordance with the provisions contained in Rule 98 of Order 21, CPC and shall pass the order. Now Order 21, Rule 103, CPC says that where any application has been adjudicated upon under Rule 98 or Rule 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. Similarly Rules 99 and 100 of Order 21 also apply only to third persons, who were dispossessed and thereafter they moved the application for putting them back into the possession. Rule 101 of Order 21 provides that all questions relating to right, title and interest in the property between the parties to proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. As such, from the aforesaid provisions, it is clear that an order adjudicating the application filed under Order 21, Rule 98 or Rule 100, CPC shall be deemed to be a decree.

Now in the instant case the Appellants who claim to be the tenants of the decree-holders are admittedly not the parties to the decree. They are neither decree-holders nor auction-purchasers. They are also not such persons, who have been dispossessed. As such, none of the provisions of Order 21, Rules 97, 98, 99 or 100 is attracted in the facts and circumstances of this case. It, therefore, follows that by no stretch of imagination it can be said that the case of the Appellants covers under the ambit of Rule 98 or Rule 100 and as such it could not be treated as a decree in accordance with the provisions contained in Rule 103 of Order 21, CPC Code. The contention of Shri Saxena, learned Counsel for the Appellant has no force when he says that since the executing Court has passed an order after recording the evidence on the application of the Appellants the order should be treated to have been passed under Order 21, Rule 98, CPC Code. How can such an order be treated to have been passed under Order 21, Rule 98, CPC when under Order 21, Rule 97 the Appellants had no right to file such an application. It may also be mentioned that the Appellants before the executing Court have omitted to state the provisions under which the applications of objection were filed by them. It was the duty of the trial Court to first ascertain the legal status of the Appellants to move such application but unfortunately the trial Court overlooked that fact. It appears that for the same reason the Appellants were not shown as to whether they should file an appeal before the lower Court or a revision, that is why the alternative provisions of both appeals and revisions were invoked before the lower Court. The Full Bench of this Court in Usha Jain''s case (supra) has clearly laid down that a third party in possession cannot apply and force an enquiry into his right and the learned lower Court, therefore, not erred in following the principles enunciated in the aforesaid Full Bench decision.

In the result, I am of the opinion that these appeals are not tenable and, therefore, they should be dismissed being untenable. Accordingly the appeals are dismissed with costs. Counsel''s fee Rs. 100/- in each appeal.