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Sm. Santilata Paul Vs. Nanda Kishore Mukherjee - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 537 of 1979
Judge
Reported inAIR1981Cal219,85CWN497
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 97, 98 and 101; ;Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantSm. Santilata Paul
RespondentNanda Kishore Mukherjee
Appellant AdvocateGanesh Chandra Basak, Adv.
Respondent AdvocateMadan Mohan Mallick, Adv. for Opposite Parties Nos. 1 to 4
Excerpt:
- .....determined in the execution case itself and it cannot be left to be adjudicated upon by a separate suit. rule 98 is wide enough to cover all cases of resistance or obstruction by a person including a transferee pendente lite. rule 104 only saves any suit which may be pending on the date of the commencement of the proceeding. unless there is any such pending suit, all orders under rule 101 or rule 103 shall be treated as decrees and be appealable. it is therefore held that the present order is not revis-able because that order is appealable. there is a practical difficulty in treating the present revisional application as an appeal because the appeal will have to be filed in the court of the district judge, 24 parganas. hence this revisional application is not maintainable. 8. the rule is.....
Judgment:
ORDER

B.N. Maitra, J.

1. The landlord opposite parties Nos. 1 to 4 filed an execution case after they had obtained an ex parte decree for ejectment in Title Suit No. 303 of 1974. Resistance was offered and thus they filed an application according to the provisions of Rule 97 of Order 21 of the Code of Civil Procedure. They asked for eviction of the occupants with police help. That Misc. Case was allowed. Hence this revisional application.

2. It has been contended on behalf of the petitioners that the learned Munsif made a mistake in not entering into the merits of the case. It was not a summary investigation. Moreover, in view of the provisions of Order 21, Rule 104 of the Code, it is not necessary to file any appeal. The revisional application is maintainable.

3. The learned Advocate appearing on behalf of the opposite parties has maintained the contrary.

4. The first question arises whether it was a summary proceeding and whether the question of title can be gone into by the learned Munsif at that stage Of the proceeding. Rule 101 of Order 21 of the Code clinches the issue on this, for it says:

'All questions (including questions relating to right, title or interest in the property) arising between the parties to a 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.'

Hence in view of the provisions of amended Rule 101 of Order 21 of the Code, the question of title raised by the petitioner can be gone into and decided. The learned Munsif illegally declined to go into this important aspect of the matter and acted with material irregularity in allowing the misc. case in a summary fashion.

5. The last question arises whether the, order passed by the learned Munsif is evisable. It appears from the amended Rule 103 of Order 21 of the Code that when an application has been adjudicated upon under Rule 98 or Rule 100, such order shall be treated as a decree and be appealable.

6. Here it will be necessary to deal with some of the provisions of Rules 97 to 104 of Order 21 of the Code. These Rules underwent an amendment by the amending Act of 1976. When there is resistance or obstruction, a Misc. Case is filed according to the provisions of Rule 97. Determination is then made according to Rule 98 (1). That rule says that upon determination of the question referred to in Rule 101, the Court shall pass necessary order. So also Rule 100 shows that upon determination of the question referred to in Rule 101, the court shall, according to such determination, make an order allowing the application or pass such order as it may consider fit. It appears from Rule 103 that when an application has been adjudicated upon under Rule 98, such order will be treated as a decree. So on adjudication of an application under Rule 97 for determination of all questions envisaged by Rule 101, an order has to be passed by the court according to the provisions of Rule 98. Since Rule 103 says that an adjudication of an order under Rule 98 or Rule 100 is appealable, it must be held that the present order is appealable.

7. As stated before, by the amendment made in 1976, it has been stated that questions including one relating to right, title or interest in the property, arising between the parties to a proceeding under Rule 97 or Rule 99 is to be determined in the execution case itself and it cannot be left to be adjudicated upon by a separate suit. Rule 98 is wide enough to cover all cases of resistance or obstruction by a person including a transferee pendente lite. Rule 104 only saves any suit which may be pending on the date of the commencement of the proceeding. Unless there is any such pending suit, all orders under Rule 101 or Rule 103 shall be treated as decrees and be appealable. It is therefore held that the present order is not revis-able because that order is appealable. There is a practical difficulty in treating the present revisional application as an appeal because the appeal will have to be filed in the court of the District Judge, 24 Parganas. Hence this revisional application is not maintainable.

8. The Rule is discharged. There will be no order as to costs.

9. Send down the records at once.


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