GIRDHARILAL Vs. BALCHAND KESHRIMAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 19.10.1989 in Civil Suit No. 2 -N/1988 by the learned District Judge, Jhabua, who was pleased to dismiss the suit mainly on two grounds. One that no suit can be · filed and the appellants could have exhausted remedy under Order XXI Rule 58 of the Code of Civil Procedure (for short the 'Code'), since the appellant had already raised his objections and objection application has been disposed of, he can prefer an appeal or revision, whichever is available, and not by way of a separate suit. Secondly suit was dismissed as no cause of action was made out in the plaint.

(2.) THE learned counsel argued that the trial Court has erred on both counts. Firstly he argued that provisions of Order XXI Rule 58 of the Code themselves provide that an appeal against an order passed under that Rule is available only if the same is decided on merits one way or other, whereas in the other cases Sub -Rule 5 of Rule 58 would be applicable where filing of the suit is provided for. He argued that in this case, the objections were rejected on the ground of limitation and not on merits. The same cannot be appealed against under Sub -rule 4. In such circumstances, he said the suit remedy is open and is the only remedy available to the appellant. The argument of the learned counsel has a force reading the provisions as they are :

(3.) WHERE a claim or an objection is preferred and the Court, under the proviso to sub -rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.