KANNU Vs. DAULAT RAM

JUDGEMENT

(1.) By way of present petition, the petitioner has assailed an order dated 10th January 2008 passed by the learned ADJ allowing an appeal against an order dated 29th August 2006 of learned Civil Judge.

(2.) Brief facts relevant for the purpose of deciding this petition are that the respondent 's predecessor Daulat Ram, who was allottee of Plot No. 138, had filed a suit for possession against the predecessor of the respondent. A decree of possession was passed in favour of Shri Daulat Ram on 16th December 1982 in respect of one Khokha measuring 8 'x6 ' existing upon a piece of land measuring 103 sq yards in Village Abadi, Old Roshanpura, Nazafgarh, New Delhi. Against this judgment, an appeal was filed by Shri Kanu, predecessor of present petitioners being RCA No.87 of 1983. The first appellate court stayed the operation of decree of trial court during pendency of appeal. In the meantime, Mr. Kanu filed an LPA No.69 of 1980 against an order passed in favour of Mr. Daulat Ram in a Writ Petition No.878 of 1975. Looking at the pendency of LPA before this Court, the first appellate court adjourned RCA No.87 of 1983 sine die. The LPA No.69 of 1980 was dismissed on merits on 28th September 2004. The appeal filed by Shri Kanu, predecessor of the petitioner, was dismissed as withdrawn on 27th October 2006. After dismissal of LPA, the respondent/ decree holder filed an execution before the Civil Judge for execution of the decree passed on 16th December 1982, being execution no.67 of 2004. In this execution petition, some of the Lrs of Mr. Kanu filed objections which were dismissed vide order dated 15th January 2005. Against dismissal of these objections, the Lrs of Mr. Kanu filed a CM(Main) petition which was also dismissed by High Court on merits on 24th November 2005 and against the order of this Court dismissing the CM(Main) petition, an SLP was filed by Lrs of Mr. Kanu which was dismissed by the Supreme Court on 23rd January 2006. The present petitioners who are daughters of Mr. Kanu filed fresh objections against the execution of decree under Section 47. This was the second round of objections filed by Lrs and while deciding these objections, the learned Civil Judge held execution to be time-barred. Against this order, the respondent/ decree holder preferred an appeal against the order before learned ADJ which was allowed vide the impugned order.

(3.) One of the main objections taken before the learned ADJ and before this Court as well, is about the maintainability of the appeal in view of the amendments in the Civil Procedure Code in 1976 whereby Section 47 was omitted from the Definition of Decree under Section 2 sub Section 2 vide Amendment Act No.104 of 1976. The learned ADJ considered these objections and observed that since the suit was instituted before 1976 and the appeal against the judgment /decree being already pending when the Amendment Act came into force, the right to appeal being a substantive right, the amendment would not affect the right of the party to file an appeal against an order passed under Section 47 CPC. It is submitted by counsel for the petitioner that there was an apparent error. The suit in this case was not instituted before 1976 and an appeal against the judgment/ decree was not pending when the Amendment Act came into force was clear from the facts stated by the appellate court in paragraph 3, where it is recorded that the Civil Court decree was passed on 16th December 1982 and the appeal was preferred thereafter. It is thus argued by the counsel for the petitioner that the order passed by first appellate court was liable to be set aside because the appeal was entertained on erroneous basis.