GANPAT Vs. GHANSHYAM

JUDGEMENT

(1.) HEARD the matter with consent finally in Motion. This is a writ filed under Art. 227 of the Constitution of India, by the plaintiff-petitioner against the appellate order dated 2.3.2005 (Annexure P/2), passed by Additional District Judge, Kukshi District Dhar in Miscellaneous Civil Appeal No. 6/2002, arising out of an order dated 4.2.2002, passed by Civil Judge Class I, Kukshi in Civil Suit No. 57/98.

(2.) THE need to file writ under Art. 227 of the Constitution of India to get rid of the order arose on account of amendment brought about in section 115 of the C.P. Code w.e.f. 1.7.2002 whereby, right to file revision under section 115 of the CP. Code was curtailed and secondly, in view of the law laid down by this Court in the case of Surajmal v. Sunderlal reported in 2003(2) JU 360 = 2003 (2) MPLJ 408, it was held no revision lies under section 115 of the C.P. Code against any appellate Court unless it is shown that it has resulted in finally terminating the lis out of which the appeal has arisen. The petitioner is a decree-holder. He moved an application under Order 21 Rule 32 of C.P. Code before the Executing Court praying inter alia that the judgment-debtor should be sent to civil prison because he has disobeyed the decree obtained by him. On contest the Executing Court allowed the application and directed the Judgment-debtor that he be sent to civil prison. This order was questioned by the Judgment-debtor by filing an appeal before the Additional District Judge. It is this appeal which was allowed by the learned Additional District Judge resulting in setting aside of the trial Court's order giving rise to filing of the writ by the Decree- holder because no Revision u/S. 115 of the CP. Code lies. I do not, however, wish to go in this question as to whether the petition is maintainable or the revision because in exercise of the powers conferred upon me u/Art. 227 of the Constitution of India, this Courtis empowered to exercise powers of superintendence over the subordinate Courts. Submission of learned counsel for petitioner was that appeal filed by the Judgment-debtor before the. 1st Appellate Court challenging the order passed by Executing Court under Order 21 Rule 32 of C.P.C. was without jurisdiction. According to him there is no provision much-less any specific provision which empowers the Judgment-debtor to file an appeal against such an order. He pointed out that Order 43 Rule 1 of the Code of Civil Procedure which provides for an appeal cannot be pressed into service because the Order passed on the application u/ O. 21 R. 32 of C.P.C. does not fall in any of the clauses enumerated in Rule (1) of Order 43 of C.P.C.

(3.) IN my considered opinion no appeal lay against an order passed by the Executing Court under O.21 R. 32 of C.P.C. A right of appeal is a statutory right. It cannot be conferred nor created except by a letter of law. In the absence of any provision muchless specific provision making an order passed under O. 21 R. 32 C.P.C. appealable, an aggrieved i.e. Judgment-debtor herein had no right to file an appeal before the Additional District Judge. It being a settled principle of law that filing of an appeal before any Court/authorities does not invest the authority to entertain appeal only because none raised an objection. In the absence of jurisdiction, the Additional District Judge erred in entertaining the appeal. He should have dismissed the appeal as being not maintainable for want of specific power/jurisdiction under the C.P.C. Indeed, even the judgment-debtor did not mention any section or order nor to show any provision nor the impugned order mention any provision.