HATIMBHAI ABDEALI Vs. BHAGWANDAS HIRALAL GUNDARIA

JUDGEMENT

(1.) This appeal against an order arises out of an execution proceedings. In execution of a decree passed by the Small Causes Court in R.A.E. Suit No. 6526 of 1955, the plaintiff-decree-holder sought to execute this decree against the judgment-debtor. When the decree was put for execution, the appellant-applicant was on the premises which are involved in the decree. The decree relates to three shops and we are concerned only with Shop No. 4 in this appeal.

(2.) The appellant filed an application before the Executing Court under Order 21, Rule 100(7) of the Code of Civil Procedure resisting the execution of the decree. That application was heard by the learned Judge of the City Civil Court in Chamber Summons No. 470 of 1978. During the pendency of the Summons the appellant had also applied for ad interim injunction against the plaintiffs. The learned Judge of the City Civil Court has dismissed the Chamber Summons and vacated the injunction by his order July 3, 1981. This Chamber Summons was taken out in Suit No. 2170 of 1961. The present appeal is filed by the appellant against the order passed by the learned Judge of the City Civil Court at Bombay. When the appeal was called for hearing it was pointed out that the appeal is not maintainable as it is not covered by the provisions of the Code contained in Order 43, Rule 1 of the Code of Civil Procedure.

(3.) Mr. M.V. Paranjape, the learned Counsel for the appellant conceded this position and contended that this appeal should be treated as first appeal against the decree. Therefore, I have permitted Mr. Paranjape to argue this appeal on the footing that it is a first appeal against the order assed by the City Civil Court in proceedings commenced by an application under Order 41, Rule 100 of the Code of Civil Procedure, in view of the judgment of this Court reported in (Kisan Ranchhodas v. Lalji Dharamdas) 1982 Mh.L.J. 216, any order passed on an application filed by the obstructionist under Order 21, Rule 103 and if the application is disposed, the remedy of the applicant-obstructionist is to file an appeal against the said order. Following this authority, I allowed the learned Counsel for the appellant to argue the appeal as a first appeal directed against the said order passed by the City Civil Court in Chamber Summons, which came to be dismissed on July 3, 1981.