Poonam Srivastava, J.
1. Heard Sri Rahul Sahai, learned counsel for the applicant and Sri Anshu Chaudhary, Advocate for the contesting respondents.
2. This is an application under Article 227 of the Constitution of India, challenging the order dated 24-3-2005, passed by the Additional District Judge, Court No. 4, Mathura, in Misc. Appeal No. 30 of 2005 (Sukarma Developers Private Limited v. Brij Pal Sharma).
3. The sole ground of challenge is, that Misc. Appeal filed by the contesting respondents, against the order dated 18-2-2005, by the executing Court while deciding the application under Order 21, Rule 97, was not maintainable. Therefore, the entire proceedings before the Additional District Judge, Mathura, in Misc. Appeals are rendered without jurisdiction.
4. A preliminary objection has been raised on behalf of contesting respondents, regarding the maintainability of the present application. Counsel for the respondents has argued that the appeal was allowed by the Civil Judge (Senior Division), on transfer from the District Judge, and the case was remanded to the trial Court (executing Court) exercising the powers under Order 41, Rule 23 and 23-A, CPC as such the applicant should have filed a first Appeal from Order.
5. The facts giving rise to the dispute are that the applicant-Brij Pal Sharma, son of late Hari Shanker Lal Sharma, is the decree holder. In pursuance to the lease deed dated 14-9-1946 executed in favour of Late Hari Shanker Lal Sharma, the father of the applicant came in possession over the disputed property and thereafter sublet a portion of the leased property to one Ram Swarup son of Bhagwan Das. The tenancy of Ram Swarup was terminated by Hari Shanker Lal Sharma, lessee, but, since the possession was not handed over, a civil suit for eviction being Original Suit No. 131 of 1980 was instituted. The suit was decreed vide judgment and decree dated 21-1-1981. Ram Swarup preferred an appeal before the District Judge, Mathura, which was also dismissed vide judgment and order dated 25-8-1983. The execution proceedings were initiated in the year 1984, after the dismissal of appeal of Ram Swarup and it was registered as Execution Case No. 21 of 1984, in the Court of Civil Judge, (Junior Division) Mathura. Second Appeal against the judgment and decree dated 21-1-1981 and 25-8-1983, was also dismissed.
6. During the pendency of the execution proceedings, one Murari Lal filed a Civil Suit viz. Original Suit No. 283 of 1994 in respect of the same property against Ram Swarup, for eviction on the ground that the property in possession of Ram Swarup was purchased by him from the original owner Bhagwan Das on 6-2-1965, and it was stated that the lease in favour of the applicant's father late Hari Shanker Lal Sharma, was terminated long back and he had no interest over the property. In the subsequent suit filed by Murari Lal, in the year 1994, neither the applicant nor his father was arrayed as a party and it is stated in the application that some how, the contesting respondents, in collusion with Ram Swarup, obtained a Dakhalnama over the property in dispute. When the applicant came to know about the subsequent suit No. 283 of 1994 filed by Murari Lal, a separate Suit No. 625 of 1995 for cancellation of the judgment and decree dated 7-7-1995 was instituted, wherein the contesting respondents were restrained from interfering in the peaceful possession of the applicant vide interim order dated 2-8-1995. In the meantime, an objection was filed Under Section 47, CPC by Murari Lal in execution case No. 21 of 1984, which was identical to the plaint allegation of Suit No. 283 of 1994. The said objections were rejected by the Court on 22-5-1998. A revision against said order was also rejected on 21-4-1998. Respondent-Murari Lal preferred a Writ Petition No. 15514 of 1998 which was dismissed on 5-11-2004. The execution proceeding initiated by the applicant, is pending since the year 1984, in which the application filed by the contesting respondents, under Order 21, Rule 97, CPC on the ground that they were in possession over the property in dispute and the applicant is threatening to throw them out of possession, was rejected on 10-2-2005 by the Civil Judge, (Junior Division), Mathura, as not maintainable.
7. Counsel for the applicant has submitted that this order dated 10-2-2005, passed on the application under Order 21, Rule 97, was finally decided under Order 21, Rule 103, CPC after following correct procedure and after following the provisions of Order 21, Rules 100 and 101, CPC.
8. It is argued that bare reading of Rule 103 of Order 21, CPC will show that the order passed was liable to be treated as a decree and, consequently, the Misc. Appeal filed by the contesting respondents, in which the impugned order has been passed, was not maintainable. Since the Court had no jurisdiction to hear the Misc. Appeal against the order dated 10-2-2005, the impugned order is rendered infructuous and without jurisdiction.
9. Shri Rahul Sahai has placed the provisions of Order 21, Rule 103, CPC which read as under :
"Orders to be treated as decrees.- 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."
10. It is, therefore, submitted on behalf of applicant that the order passed under Order 21, Rule 103, CPC was necessarily to be treated as a decree. The provision of Rule 103 is very clear that the order was subject to the same condition as to an appeal and as if it were a decree. In the circumstances, if an order has to be treated as a decree, then the only course open was to file a regular First Appeal and no Misc. Appeal could be entertained. In support of this argument, Shri Sahai has also placed the definition of 'decree' as provided in the Civil Procedure Code, which reads as under :
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or and of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [* * *] Section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;"
11. He has, therefore, emphatically countered the arguments regarding preliminary objection advanced on behalf of the contesting respondents to the effect that only a First Appeal From Order would lie. Since the Misc. Appeal in which the order of remand has been passed was itself not maintainable therefore, the argument that the remand order is one under Order 41, Rule 23 and 23-A, CPC also holds no water.
Sub-clause 1 (u) refers to an order under Rule 23 or 23-A of Order 41. Rule 23 and 23-A, reads as under :
"23. Remand of case by appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
[23-A. Remand in other cases.- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the appellate Court shall have the same powers as it has under Rule 23.]
12. Perusal of Rule 23, shows that it has to come into effect only when there is dismissal of the suit upon a preliminary point, whereas, in the present case, the order dated 18-2-2005, is an order deciding an objection under Order 21, Rule 97, CPC, whereby the objection was rejected. After hearing counsel for the respective parties, the controversy that has to be decided in the instant case is, as to whether, the Misc. Appeal or a regular appeal was maintainable against an order dated 18-2-2005 deciding the objection under Order 21, Rule 97, CPC and also, whether, the impugned order entails filing of First Appeal From Order, or the present application, whereby the supervisory powers have been invoked.
13. Shri Rahul Sahai, counsel for the applicant, has placed reliance on a Full Bench decisions of Andhra Pradesh High Court, Guram Seetharam Reddy v. Smt. Gunti Yashoda, (FB), I have gone
through the said decision. It is laid down that all the questions, including those relating to right, title or in terest in the attached property, are required to be' decided by the same Court, and not by separate suit. Indirectly, an application filed under Rule 58, is conferred the status of a suit, and the order passed, has the status of a decree. It is also held that Section 96 does not enumerate the types of decrees that can fall into its fold but once the outcome of adjudication partakes the character of a decree, it gains an entry into the realm of Section 96. Therefore, an interpretation to the contrary would have the effect of setting at naught; the intention of the Code. In view ; of a clear mandate under sub-rule (4) of Rule 58, the character of a decree for all practical purposes, leaves the litigants to avail the same remedy, Same reasoning holds good for the orders passed under Rules 98 and ; 100 of Order 21, CPC. The Full Bench had not accepted the argument that First Appeal from Order as provided Under Section 104, CPC, can be said to be maintainable , as it is neither general nor residuary in nature. The memo of appeal has been annexed as annexure 7to the application and emphasis had been laid on the title which has been labeled as "Misc. Appeal". It has also been depicted that only formal order and not a decree was prepared, therefore, there was no question of maintainability of Misc. Appeal which has been decided by the impugned order.
14. The counsel for the respondents, has categorically stated that the objection having been raised for the first time in this Court is not entertainable at this stage, as this question was never raised before the Court below when the Misc. Appeal was being argued. He further submitted that the only objection raised before the Court below was that at some places word 'Appeal' and at other places the word 'Misc. Appeal' had been mentioned in the memo of appeal and this cannot be permitted to be raised for the 'first time in an application under Article 227 of the Constitution of India.
15. Shri Dayal has emphatically controverted each and every argument of Shri Sahai and submitted that the preparation of the formal order or decree, is an act of the Court for which the respondents have no control and, therefore, the impugned order cannot be set aside for want of a decree. It is further argued that the order dated 10-2-2005 will not amount to decree within the definition of Section 2(2) CPC. It is an order declared to have same force and effect subject to the same condition, as to the appeal or otherwise, as if it were a decree as well under Order 21, Rules 102 and 103, CPC.
16. He has also tried to argue that the court fee paid, was that of regular appeal i.e. Rs. 112.28. True, the court fee paid was that of a regular appeal but still it cannot be said to be sufficient to hold that the appeal was not a Misc. Appeal, but a regular appeal. The decree should have necessarily been attached to the memo of appeal along with the order dated 18-2-2005. It appears from the argument, that the decree was not even prepared, and only formal order was prepared. Besides, no application for exemption for filing of decree was filed on behalf of contesting respondents and, in the circumstances, the entire proceedings before the learned District Judge, Mathura, are without jurisdiction.
17. The counsel for the respondents has placed reliance on the decision in the case of M. S. Khalid v. K. R. Rangaswamy, AIR 2003 Karnataka
174. I have gone through the decision and I do not understand as to how it helps to the respondents. Para 10 of the said decision is quoted below :
"10. There is no gainsaying in the fact that an appeal preferred as against an order on an application under Rule 97, CPC is an appeal whether it is termed as a 'Regular Appeal' or by any other name and is governed by the provisions of Rule 103 of Order 21, CPC. On adjudicating an application under Rule 97, CPC, the resultant order is given the status of a decree and as against every decree, appeal is provided for, under the Code. It is under such circumstances, the provision of Rule 103, CPC has been incorporated by the Amending Act 104 of 1976 indicating the manner in which such appeals are to be dealt with. Even if the appeal is styled as a Regular Appeal, the scope is again to be looked into from the provisions of Order 21, CPC. However, describing that as an execution appeal which was an expression in vogue earlier, is not an accurate description of an appeal of this nature."
18. The other decision, relied upon by the counsel for the respondents, is of the case of Ram Pyare v. Special Judge, Basti, AIR 1999 Allahabad 251 : (1999 All LJ 1654) I do not feel that the said decision is of any help to the contesting respondents. The ruling relied upon, has not decided the controversy, which is involved in the instant case.
19. The third decision relied upon by Shri Dayal is of the case of Ram Sukh Tripathi v. District Judge, Varanasi (2004 (56) ALR 263). This decision again does not decide the controversy which is involved in the instant case.
20. The Full Bench decision of Karnataka High Court in the case of Gurram Seetharam Reddy v. Smt. Gunti Yashoda (supra), has dealt in para 35 the necessary controversy which has been raised by the present applicant. Said paragraph is quoted below :
"35. When Section 96, CPC Specifically provides for appeals against decrees, and sub-rule (4) of Rule 58 of Order 21 directs that the order passed under sub-rule (3) thereof shall have the force of a decree there hardly exists any basis to deny such characteristics to such an order. An interpretation to the contrary would have the effect of setting at naught the intention of the Parliament in attributing characteristics of a decree to an order. In view of a clear mandate under sub-rule (4) of Rule 58, an order passed under sub-rule (3) thereof, partakes a character of a decree for all practical purposes, more so, in the contest of availing the remedy of appeal. Same reasoning holds good for the orders passed under Rules 98 and 100 of Order 21, CPC. Hence, there does not exist any justification to treat the same as different, in any way from decrees, at least in the context of deciding the forum and provision for appeal. The question as to what nomenclature is to be given to the appeals, needs to be dealt with by the High Court or the District Courts, on administrative side. Hence, we are of the view that the judgment of this Court in Nookaraju's case (supra) does not lay the correct proposition of law. Once it is held that orders, passed under Rule 58(3) and Rules 98 and 100 of Order 21, CPC, are appealable Under Section 96, CPC, it is axiomatic that a second appeal is maintainable against the order passed in such appeals. Though this question is not referred to this Full Bench, it is dealt with, to put an end to the controversy and uncertainty."
21. After going through (he record and various decision relied upon, 1 do not find any strength in the preliminary objection raised by the counsel for the respondents. The order impugned in this application cannot be said, by any stretch of imagination, to be one, under Rule 23 or Rule 23-A of Order 41 and, therefore, Misc. Appeal under Order 43 is not maintainable. In fact,' perusal of the impugned orders, makes it clear, that while holding the Misc. Appeal to be maintainable, the finding has clearly been recorded that preliminary decree has yet riot been prepared, no objection was invited after preparation of the preliminary, decree under Order 21, Rule 97, 93 and 101, CPC, it was imperative for the Court to have invited objection from the decree holder and without doing so, the Court had also gone ahead and sot aside the judgment dated 18-2-2005 which was to be treated as decree in view of provisions of Civil Procedure Code. Since question of maintainability has not been properly adjudicated by the learned Additional District Judge, Mathura, I am of the view, that the order dated 24-3-2005 is liable to be quashed and it should be remanded to the learned District Judge concerned to give a clear finding as to whether the Appeal or Misc. Appeal, as the case may be, was maintainable, taking into account the fact that it was only a formal order that was attached with the memo of appeal and not a decree, I need not decide the controversial questions as to the right and title of the parties and the consequences of the judgment and decree in the suit filed" by Murari Lal, Both the contesting parties have staked their rival claims, one on the basis of a lease deed and the other on a sale deed. It is, therefore, appropriate that matter be decided afresh.
22. For the reasons discussed above, the order dated 24-3-2005 is set aside and the case is remanded to the Additional District Mathura to decide the question of maintainability first, before he proceeds to decide and record any finding on merits. Accordingly, without giving any opinion on any other question, this application under Article 227 of the Constitution is allowed. The Court below shall decide the matter expeditiously as it is to be borne in mind that the execution proceedings were initiated in the year 1984. This application is accordingly allowed.