JUDGMENT
M.M. Das, J.
1. This Civil Revision under Section 115 of the Code of Civil Procedure has been preferred against the Judgment dated 11-03-2003 passed by the Learned District Judge, Keonjhar in Misc. Appeal No. 13 of 1993 setting aside the Order passed by the Learned Executing Court in M.J.C. No. 45 of 1984.
2. The Opp. Party herein filed T.S. No. 5 of 1983-1 in the Court of Civil Judge (Senior Division), Keonjhar with a prayer for a decree declaring his right, title and interest over the suit scheduled property and for recovery of possession in respect of the said land which constituted an area of Ac. 0.08 decimals appertaining to Hal Settlement Plot No. 301 corresponding to part of Sabik Plot No. 296, measuring Ac. 4.55 decimals under Khata No. 1/ka situated in mouza-Siluan. The Defendants in the said suit were the vendors of the Plaintiff-Opp. Party, namely, Raja Ananta Narayan Bhanjadeo and one Dambarudhar Mahanta. The said suit was decreed ex parte on 24.10.1983 declaring the title of the Plaintiff over the suit property and also directing recovery of possession of the same from the Defendant No. 2. The Plaintiff levied execution case and on his prayer, the executing Court deputed a civil Court Commissioner for demarcation and delivery of possession of the suit land to the Plaintiff. Accordingly, on 8.5.1984, the suit property was delivered to the Plaintiff-decree holder.
3. The Petitioner who was a third party to the said suit, filed an application under Order 21, Rule 97 C.P.C. before the executing Court on 20.6.1984, inter alia, alleging that the decree holder has managed to take possession of a portion of her land illegally by influencing the civil Court Commissioner and the process server deputed by the Court to deliver possession. It was further alleged by her that the boundary wall constructed by her has also been broken and damaged in the process of giving delivery of possession. According to her, she purchased Ac.0.20 decimals of land appertaining to Sabik Plot No. 103/296 under Khata No. 1/Ka by a registered sale deed in 1968 on payment of consideration and was continuing in peaceful possession over her purchased property, a portion of which was illegally delivered to the decree holder-Opp. Party. She, therefore, prayed for not accepting the report of the Commissioner and the process server and for an Order to restore back the possession of the property from which she has been illegally dispossessed. The said application was registered as Misc. Case No. 45 of 1994.
4. The Opp. Party, herein being the decree holder filed an objection to the said Misc. Case, inter alia, stating that no illegality has been committed during delivery of possession of the suit land to the Opp. Party and it was, only Defendant No. 2 being Dambarudhar Mahanta who is related to the Petitioner, has tried to create obstruction during delivery of possession and has set up to the Petitioner/ objector to file the said petition on false allegations.
5. On the basis of the documents filed by the Petitioner, report of the Civil Court Commissioner and the documents filed by the Opp. Party-Plaintiff, the executing Court allowed the petition filed by the Petitioner by Order dated 12.4.1985. Against that Order, the Plaintiff-Opp. Party preferred 4 Misc. Appeal No. 6 of 1985 which was ultimately allowed by the Learned District Judge, Keonjhar by his Order dated 5.4.1986 and the case was remanded back to the executing Court with a direction that the matter should be decided afresh after giving opportunity to The parties to adduce evidence. On remand, the executing Court again got the land demarcated by an Amin Commissioner and after taking evidence of both the parties as well as the Commissioner, dismissed the Misc. Case filed by the Petitioner by Order dated 11.3.1988. Being aggrieved, the Petitioner again preferred Misc. Appeal No. 5 of 1988 before the Learned District Judge, Keonjhar and the said appeal was allowed and again, the case was remanded with a specific direction that the land of the Opp. Party has to be measured by another Amin Commissioner by identifying the same and to deliver possession, of the suit land after demarcating the purchased land of the Petitioner constituting an area of Ac.0.20 decimals as described in the registered sale deed with reference to the boundary given in “schedule ka” of the decree and with reference to the boundary of the plots as given in the sale deed of the Petitioner. On remand, ultimately, the Commissioner deputed by the executing Court submitted a report specifically showing Ac.0.20 decimals of land which represents the purchased land of the Petitioner and Ac.0.08 decimals constituting the suit land. The said report was accepted by the executing Court and exhibited without any objection from either parties. However, the Learned executing Court while disposing of the said M.J.C. No. 45 of 1984 by his Order dated 27.3.1993, allowed the said Misc. Case in favour of the Petitioner by making an observation that the Petitioner was in possession of her purchased land along with excess land and possession of the said excess land has been delivered to the Opp. Party decree holder by demolishing the boundary wall.
6. Challenging the said Order passed by the executing Court, the Opp. Party preferred a Misc. Appeal No. 13 of 1993 before the Learned District Judge, Keonjhar, who by Order dated 27.2.1999 allowed the said appeal. The Petitioner being aggrieved by the said Order, preferred Civil Revision No. 166 of 1999 before this Court Which was disposed of by Order dated 20.6.2002 by setting aside the Order of the Appellate Court dated 27.2.1999 and remanding the matter back to the Appellate Court for disposal of the said appeal afresh on merit as well as on the question of maintainability. After remand, the Learned District Judge, Keonjhar heard the appeal at length on the question of maintainability as well as on merits and by the impugned Judgment dated 11.3.2003, holding that the appeal was maintainable, allowed the same. The Petitioner being aggrieved by the said Judgment dated 11.3.2003, has preferred the present Civil Revision.
7. Mr. Mahanta, Learned Counsel for the Petitioner submitted that the Misc. Appeal filed by the Opp. Party against the Order of the Learned Trial Court passed in M.J.C. No. 45 of 1984 was not maintainable and on that ground alone, the impugned Order /Judgment passed by the Learned District Judge in the said Misc. Appeal No. 13 of 1993 is liable to be set aside being without jurisdiction. According to Mr. Mahanta the Order dated 27.3.1993 of the Learned Trial Court passed in M.J.C. No. 45 of 1984 which was an application filed under Order 21, Rule 97 of the C.P.C. amounts to a decree under Rule 103 of Order 21 of the C.P.C. Hence, Mr. Mahanta, contends that no appeal under Section 1p4 of the C.P.C. can be maintained against an Order passed in a proceeding under Order 21, Rule 97 C.P.C. and, therefore, the Misc. Appeal was not maintainable.
8. Mr. S.S. Das, Learned Counsel appearing for the Opp. Party, on the contrary submitted that as per Rule 431 of the General. Rules and Circular Orders of the High Court of Judicature, Orissa (Civil), volume-1, an application under Order 21, Rule 97 of C.P.C. is to be registered as M.J.C. and accordingly, the application filed by the revision Petitioner under Order 21, Rule 97 C.P.C. was registered as M.J.C. The appeal filed by the Opp. Party against the Order passed by the Learned Trial Court, being an appeal from an Order, passed in a M.J.C. though under Section 96 of the C.P.C. was correctly nomenclatured as a Miscellaneous Appeal before the Learned District Judge. Mr. Das, further submitted that just because the appeal was nomenclatured as a Misc. Appeal, that does not mean that the said appeal was filed under Section 104 C.P.C. and not under Section 96 C.P.C. Relying upon the above contentions, Mr. Das further submitted that the impugned Order having been passed in an appeal under Section 96,C.P.C, the Petitioner could not have preferred the present Civil Revision as the impugned Order/Judgment can only be appealed against under the provisions of Section 100 C.P.C. by filing an appropriate Second Appeal, and, therefore, the Civil Revision itself is not maintainable.
9. In order to appreciate the rival contentions, it would be profitable to quote Rules 97 to 103 of Order 21 C.P.C which are as follows:
97. Resistance or obstruction to possession of immovable property.- (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2). Where any application is made under Sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.)
98. Orders after adjudication. – (1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of Sub-rule (2),-
(a) make an Order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such Order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the Judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, Order the Judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
(99. Dispossession by decree-holder or purchaser.-(1) Where any person other than the Judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions here in contained.
(100. Order to be passed upon application complaining of dispossession- Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination-
(a) make an Order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other Order as, in the circumstances of the case, it may deem fit.)
(101. Question to be determined.- 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.)
(102. Rules not applicable to transferee pendent lite. Nothing in Rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the Judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
Explanation.- In this rule, “transfer” includes a transfer by operation of law.)
(103. 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. A reading of the above quoted provisions of the Civil Procedure Code would show that in an application filed under Rule 97, the question to be determined are as prescribed in Rule 101 and the Order on such applications is to be passed under Rule 98. Rule 103 provides that where an application has been adjudicated upon under Rule 98, 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. Order XLIII of the Code provides for appeals from. Orders and no appeal from an Order passed on an application filed under Rule 97 of Order XXI is provided in Order XLIII. It is, therefore, clear that the Order passed by the Learned Trial Court on the application filed by the Petitioner under Rule 97 of Order 21 of the C.P.C. amounts to a decree and is appealable under Section 96 of the Code.
11. It is trite to mention that wrong nomenclature of the petition or memo of appeal does not vitiate the proceeding. Even though the Misc. Appeal filed by the Opp. Party before the Learned Trial Court might have mentioned the same to be an appeal under Section 104 C.P.C. but the said appeal should be construed to be one under Section 96 C.P.C.
12. In view of the above, the impugned Order/Judgment dated 11.3.2003 passed by the Learned District Judge, Keonjhar in Misc. Appeal No. 13 of 1993 amounts to a decree by the First Appellate Court and can only be appealed against under Section 100 C.P.C. before this Court in a properly constituted Second Appeal. Hence, this Court is of the view that the Civil Revision filed by the Petitioner against the impugned Order is not maintainable.
13. Even assuming the Civil Revision to be a memorandum of appeal filed under Section 100 C.P.C, on examining the questions raised, as it is clear that the case does not involve any substantial question of law, the petition so cannot be admitted under Section 100 C.P.C.
14. In the result, the Civil Revision is devoid of any merit and is accordingly dismissed, but in the circumstances, without any cost.