Surya Narain Poddar vs Chulhai Rajak And Ors. on 9 November, 1983

Patna High Court
Surya Narain Poddar vs Chulhai Rajak And Ors. on 9 November, 1983
Bench: S Choudhuri, Y S Singh


ORDER

1. This revision is directed against an order dated the 17th NOV. 1976, passed by the Munsif in Title Execution Case No. 14 of 1974 rejecting the application filed by the petitioner under Order 21. Rule 58 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’), This revision was originally placed for hearing before a learned single Judge of this Court, who after hearing the parties, referred it to a Division Bench and that is how it has been placed before us for hearing.

2. The facts, which are not in dispute, are that a title suit was filed for declaration of title and confirmation of possession, or in the alternative, for recovery of possession of 12 kathas 17 dhurs of land situate in Saharsa. The

said suit was decreed on contest by the lower appellate court. Thereafter the decree is being executed in the aforesaid execution case. The petitioner filed a claim petition on 7th August 1976. He claimed to be the purchaser of 10 dhurs of land under registered sale deed from one Bhagwan Prasad in the year 1968. It is said that the vendor of the petitioner purchased the said land from Janardan Singh, who was defendant in the suit, and now opposite party No. 14 in this revision application. The substance of the claim of the petitioner was that after the aforesaid purchase he came in possession of 10 dhurs of land and constructed a residential house over it and is residing there with the family members. It was also averred, as would appear from the revision application, that the petitioner’s name was also mutated in the Saharsa Municipality and he constructed a house as per the plan passed by that Municipality. A rejoinder to that application was filed by the decree-holder-opposite party No. 1 contesting the claim. After hearing learned counsel for the parties the court below rejected the application filed by the petitioner by the impugned order.

3. A preliminary objection has been raised by Mr. Angad Ojha. learned counsel appearing for some of the opposite party-decree-holders. He contended that the present revision is not maintainable as an appeal would He under the provisions of Sub-rule (4) of Rule 58 of Order 21 of the Code. In support of his contention learned counsel drew our attention to Clauses (o) and (q) of Sub-section (2) of Section 97 of the Code of Civil Procedure (Amendment) Act. 1976. (Act 104 of 1976). Clause (o) states the cases in which the new amended Section 115 would apply and cases where old Section 115 would apply. It states that where a revision application, which was pending and admitted before the Act had come into force would be governed by the old Section 115 of the Code, but, if the said revision application has been admitted after coming into force of the amendment then such application would be, governed by the amended Section 115. It will be apposite to mention here that the amendment of the provision under consideration came into force on the 1st February, 1977, and the application in revision was admitted on 25th April, 1977, and, therefore, according to this provision, the present revision application will be governed by the amended Section 115 of the Code. This amended Section 115 of the Code does not make any provision for appeal from an order under Rule 58 of Order 21 of the Code. Section 115 (2) merely says that the High Court shall not under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. It is not a provision for an appeal nor does it make a provision for an appeal from an order under Order 21. Rule 58 of the Code. Learned counsel for the decree-holders-opposite party contended that as the amended Section 115 will apply to the present revision application, the application under Order 21. Rule 58 of the Code should have been disposed of under the provisions of the amended Order 21. Rule 58, and therefore, an appeal would be under Sub-rule (4) thereof. We failed to appreciate this argument. It has already been indicated that the claim of the petitioner was filed on 7-8-1976 and the said application was disposed of on 17-11-1976. The amendment in question has come into force oil 1st February, 1977, by which date thirty days had already expired which was the period of limitation for filing an appeal in the lower appellate court. It is difficult to appreciate the argument that a claim petition filed and disposed of before the amendment would still be governed by the amended provision. For the same reason the argument on the interpretation of Clause (q) of Sub-section (2) of Section 97 of Act 104 of 1976 does not require any consideration. Accordingly, we do not find any substance in this preliminary objection and the same is hereby negatived.

4. Learned counsel appearing for the petitioner in support of this application contended that there has been serious error of record while disposing of the petition of the petitioner by the executing Court. He pointed out that the petitioner’s father Shanti Poddar may have been party in the suit but he was made a party on his own account as he purchased some other land from Janardan Singh and the 10 dhurs of land, which is being claimed by the petitioner, was not purchased by his father. According to learned counsel therefore, the whole basis of the order of the court below has proceeded on the wrong assumption when the court below has stated that as the father of the petitioner was a party in the suit the

petitioner, who is his son, is bound by the decree and as such the claim application has no merit. If the contention of learned counsel for the petitioner is correct that is the aforesaid fact was an error of record, then the order of the court below suffers from material irregularity in exercise of its jurisdiction in rejecting the petitioner’s claim. No other point was raised before us.

5. In the result, the application is allowed the impugned order is set aside and the court below is directed to register the claim petition of the petitioner as a miscellaneous case and dispose of the same in accordance with law. It is made clear that it will be open to the decree-holder-opposite party to show at the time of hearing of the Misc. Case that what has been stated to be an error of record as aforesaid is not so. There will be no order as to costs.

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