CHOUTHMAL Vs. SUNDERLAL

JUDGEMENT

(1.) This order shall govern the disposal of Misc. Second Appeal No. 194 of 1990 and Misc. Second Appeal No. 195 of 1990 fled against the order dated 2-5-1990 passed by the Second Additional Judge to the Court of the District Judge, Mandsaur, in Civil Misc. Appeal No. 38 of 1989 (C.R.A. No. 17-A/1990) and Civil Misc. Appeal No. 37 of 1989 (C.R.A. No. 16-A/1990) confirming the order dated 2-5-1989 passed by the Civil Judge Class II, Mandsaur in Execution Case No. 437-A/82 x 85.

(2.) The facts of the case are that the house belonging to respondent No. 1 Sunderlal, respondent No. 2 Surajmal and respondent No. 3 Kiranmal was mortgaged to respondent No. 4 Tahir Ali on 2-1-1963 for Rs. 3500/ - by executing a mortgage deed. Another mortgage deed was executed on 5-3-1965 and Rs. 1200/- were taken by the mortgagors. A suit for redemption of the mortgage was filed by respondents Nos. 1, 2 and 3 and a decree was passed in favour of respondents Nos. 1, 2 and 3 on 16-1-1985. Thereafter, the execution was filed by the decree-holders which was registered as Execution Case No. 437-A/82 x 85. The present two appellants filed objections in that execution case but the objections were dismissed by the Court after recording the evidence vide order of the Civil Judge Class II, Mandsaur dated 2-5-1989. Aggrieved by the order passed by the Civil Judge Class II, Mandsaur, the two appellants preferred misc. appeals and alternatively civil revisions. The misc. appeal of Bherulal was registered as Misc. Appeal No. 37 of 1989 and alternate Civil Revision No. 16-A of 1990 and Misc. Appeal of Chouthmal was registered as misc. appeal No. 38 of 1989 and alternate civil revision No. 17-A of 1990. However, by a common order, the Additional Judge to the Court of the District Judge, Mandsaur dated 2-5-1990 dismissed the appeals/revisions. It is against this order that the misc. second appeals have been filed.

(3.) According to Shri Saxena, learned counsel for the appellants, misc. second appeal lies against the impugned order of the lower Court. According to Shri Saxena, as per Rule of Chapter IV Note of the High Court Rules, all the appeals have to be classified as either first appeal, second appeal or misc. appeal. First, appeal and Second appeal refer to appeals from original and appellate decrees respectively; all appeals from orders including those under Section 47 of the Civil Procedure Code, whether original or appellate are classified as misc, appeals. As such, whereas the nomenclature of first and second appeal is of only those appeals which are from the decrees but the misc. appeal nomenclature covers all the residual class of appeals in civil proceedings whether from the Code of Civil Procedure under Order 43, Rule 1, C.P.C. or from the execution branch which are made appealable by a fiction describing those orders to be decrees. According to Shri Saxena even after the amendment in the Civil Procedure Code, the definition of Section 2(2), Civil Procedure Code covers various orders including those passed under Order 21, Rule 58(4) and Order 21, Rule 103, Civil Procedure Code. As such, misc. appeal classification embraces all other appeals under various enactments like Hindu Marriage Act, Indian Succession Act, Motor Vehicles Act. Actually the word 'second' added in the heading of the appeal is for the purpose of clarifying the fact that this appeal is a second appeal, although it is a misc, appeal and the second appeal is tenable being against a decree because the orders passed under Order 21, Rules 98 to 101, C.P.C. are deemed to be decree. It has further been argued that although the present appellants are not the parties in the decree, but the appellants being in possession of the suit premises as tenants of the decree-holders and on their application the executing Court investigated the claim of the appellants. As such, the investigation could be possible only under Order 21, Rule 97(2) of the Civil Procedure Code and as such the order shall be deemed to have been passed under Order 21, Rule 98 after recording the evidence of both the parties. The respondents have joined in the proceedings, and, therefore, they cannot now make a submission that the order has not been passed under Order 21, Rule 98, Civil Procedure Code.