Skip to content


Bai Kashi Vs. Shah Mohanlal Somhand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 795 of 1968
Judge
Reported inAIR1974Guj110; (1973)GLR568
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2), 47, 96 and 104 - Order 21, Rule 58 - Order 43, Rule 1
AppellantBai Kashi
RespondentShah Mohanlal Somhand and ors.
Appellant Advocate M.C. Shah, Adv.
Respondent Advocate N.H. Bhatt, Adv.
Excerpt:
- .....of the said house. in that suit the first opponent alleged that the second opponent had taken the suit house at yearly rent of rs. 422.50 which was the standard rent and the standard rent of the said house was in arrears from 12th september, 1961 and also on the ground of alleged creation of sub-tenancy, the suit for possession was filed. in that suit judgment and decree was passed on april 30, 1965 by the learned civil judge. junior division, borsad in whose court the suit was filed and the opponents nos. 2 and 3 were directed to hand over peaceful and vacant possession of the said house to the first opponent on or before july 30. 1965, in execution of the decree the first opponent filed a darkhast, being regular darkhast no. 127 of 1965 in the court of civil judge, j. d., borsad, for.....
Judgment:
ORDER

1. The Petitioner herein is the original objecting third party and the opponent No. 1 is a decree-holder. Opponents Nos. 2 and 3 are the judgment-debtors against whom the opponent No. 1 had obtained a decree The second opponent is related to the Petitioner in the sense that he is brother of the deceased husband of the Petitioner. The petitioner's husband had two brothers Somchand Sakarchand-2nd opponent herein and one Dahyabhai Sakarchand. Dahyabhai Sakarchand died during minority. On December 11, 1924 the deceased husband of the petitioner purchased a house on behalf of himself and as a guardian of his two younger brothers. This house was situated in Kashipura Dalwadi Wada, Borsad. After the death of Dahyabhai, the Petitioner's husband and the second opponent became co-owners of the said house and after the death of the petitioner's husband the petitioner has been residing on the ground floor portion of the house and the second opponent was in, possession of the first floor portion which he had let to the third opponent. On September 10, 1952, the petitioner and the second opponent executed a document of conditional sale in respect of that house, The mortgage deed was executed in Layout of the first opponent for a sum of Rs. 6,000/-. Even after the execution of the document by way of conditional sale, the petitioner and the second opponent continued to remain in possession of the said house. Thereafter the second opponent alone had created a second mortgage in the sum of Rupees 4,000/- on the same property and this second mortgage was also in favour of the first opponent. The first opponent was entitled to recover Rs. 6,000/- jointly from the petitioner and the second opponent and Rs. 4,000/- from the second opponent alone. After advancing the amount of Rs. 4,000/- the first opponent obtained a rent note in respect of the said house from the second opponent. On the strength of the said rent note the first opponent filed a suit being Regular Civil Suit No. 12 of 1964 against the second and third opponents for recovering arrears of rent and possession of the said house. In that suit the first opponent alleged that the second opponent had taken the suit house at yearly rent of Rs. 422.50 which was the standard rent and the standard rent of the said house was in arrears from 12th September, 1961 and also on the ground of alleged creation of sub-tenancy, the suit for possession was filed. In that suit judgment and decree was passed on April 30, 1965 by the learned Civil Judge. Junior Division, Borsad in whose court the suit was filed and the opponents Nos. 2 and 3 were directed to hand over peaceful and vacant possession of the said house to the first opponent on or before July 30. 1965, In execution of the decree the first opponent filed a darkhast, being Regular Darkhast No. 127 of 1965 in the Court of Civil Judge, J. D., Borsad, for recovering possession of the said house. According to the petitioner she was in possession of the ground floor portion of the said house but in this Darkhast Application the execution was sought for not only against opponents Nos. 2 and 3, but also against the petitioner. In Darkhast proceedings the petitioner filed her objection contending inter alia that she was staying in the ground floor, portion of the house in her own right and that she was not a 'Party to the suit and that the decree was not binding on her. She also contended that she had one half share in the suit house. She further contended that the house had -been conditionally sold to the first opponent and that the notice had been served on the first opponent for redeeming that mortgage. The learned trial Judge viz., Civil Judge, Junior Division, Borsad allowed the objection raised by the petitioner as he held that the petitioner was in possession in her own right and that the decree against opponents Nos. 2 and 3 was not binding on the petitioner. He further held that the first opponent could not proceed against one half share i.e., ground floor portion of the said house and thus the objection filed by the present petitioner was allowed.

2. Against this Judgment and order the first opponent preferred an appeal before the District judge of Kaira at Nadiad and by his judgment and order the learned District Judge allowed the appeal holding that the first opponent was at liberty to execute the decree for recovery of possession of the whole house including the portion In possession of the petitioner. It is against this Judgment and order of the learned District Judge that the present Civil Revision Application has been filed.

3. It is clear from the narration of facts set out hereinabove that the petitioner was not a party to the decree as she was not a party in the suit in which the decree was passed. Hence she cannot be governed by the provisions of Section 47 of the Civil Procedure Code. The appeal before the learned District Judge was therefore not against the order passed in virtue of powers conferred upon the trial Court by Section 47 of the Civil Procedure Code. The other provision of the Code against which an appeal could possibly lie is Order 43. Rule 1, which provides for appeals against orders Clause (1) of Order 43. Rule 1 speaks of an order under Rule 34 of Order 21 on an objection to the draft of the document or of an endorsement and clause (j) provides for an appeal against an order under Rule 72 or Rule 92 of Order 21 setting aside and/or refusing to setting aside a sale. It is obvious that the order passed by the learned trial Judge in Darkhast proceedings was neither an order under Order 21, Rule 34 nor an order under Order 21, Rule 92 or under Order 21, Rule 92. Therefore, there was no right to appeal under provisions of Order 43, Rule 1.

4. Since the matter did not fall within the four corners of Section 47 of the Civil Procedure Code the order passed on the objection raised by the present petitioner could not be treated as a decree by virtue of definition under Section, 2(2) of Civil Procedure Code. Under these circumstances the learned Judge with respect to him was in error when he entertained the appeal and passed order that he has done. He had no Jurisdiction to entertain the appeal in the first instance. The order passed by him in appeal was therefore a nullity since it was an order passed by a court having no Jurisdiction to pass the same.

5. This Revision Application is allowed and the Judgment and order of the learned District judge are set aside. There will be no order as to costs. Rule made absolute.

6. Revision allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //