RAGHUNATH R SHINGATE Vs. JAYANT GAJANAN PATHAK

JUDGEMENT

(1.) This is an Appeal preferred by one of the Obstructionists for challenging the Judgment and Order dated 7 th December, 2009 passed by the learned Judge of the City Civil Court, Mumbai. The firstash Respondent is the original Plaintiff. It is not in dispute that the first Respondent filed a suit under Section 6(1) of the Specific Reliefs Act, 1963 (hereinafter referred to as "the said Act") for possession of the suit premises against the second to fourth Respondents. The suit was decreed. The execution of the Decree was obstructed by the Appellant and two others. Therefore, a Chamber Summons was taken out by the first Respondent by invoking Rule 97 of Order XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). By the impugned Judgment and Order, the said Chamber Summons has been made absolute. The Appellant has preferred this Appeal by relying upon Rule 103 of Order XXI of the said Code.

(2.) learned Senior Counsel appearing for the first Respondent raised an objection to the maintainability of the present Appeal. His submission is that in view of Sub section (3) of Section 6 of the said Act, an Appeal against the Decree passed in a suit under Section 6(1) of the said Act is not maintainable. His submission is that in fact an Appeal is not maintainable against any order or a decree passed in a suit under Section 6(1) of the said Act. His submission is that as an Appeal is not maintainable against the decree passed in the suit, an Appeal will not lie against the order passed in execution of the decree passed in a suit under Section 6(1) of the said Act. He placed reliance on a decision of the Calcutta High Court in the case of Kanai Lal Ghoseash v. Jatindra Nath Chandra, 1918 AIR(Cal) 925. He has also placed reliance on a decision of Nagpur High Court in the case of Zakarali v. Israr Hussain and Another, 1947 AIR(Nag) 53.

(3.) Learned counsel appearing for the Appellant invited the attention of the Court to the Rules 97 to 103 of Order XXI of the said Code. He submitted that the scheme of the said Code contemplates that even the rights of the third parties are required to be finally determined while making an adjudication on an application under Rule 97 of Order XXI of the said Code and the Rule 103 thereof confers status of a decree on the order passed on adjudication made under Rule 97 of Order XXI of the said Code. He placed reliance on a decision of this Court in the case of Kishan Ranchhoddas and Another v. Lalji Dharamdas Kapadia and Other, 1982 MhLJ 216. He placed reliance on a decision of the Apex Court in the case of N.S.S. Narayana Sarma & Others v. M/s. Goldstone Exports (P) Ltd. And Others, 2002 AIR(SC) 251. He submitted that the Apex Court has held that the adjudication made under Rule 97 or Rule 99 of Order XXI of the said Code has to be treated as a decree as all the questions arising between the obstructionist and the decree holder are required to be decided in the proceedings for removal of obstruction and not by way of a separate suit. ash