MADHUSUDAN Vs. RAJESH

JUDGEMENT

(1.) BY the order impugned the appellate Court below has declined appellant/applicant's prayer for converting their Miscellaneous Civil Appeal (No. 36/95) into a Regular Civil Appeal.

(2.) A decree for eviction from a house has been passed in Civil Suit No. 28 -A/72 by the Court of Civil Judge, Class I, Mhow, in favour of respondent Nos. 1 to 5 and against respondent Nos. 6 to 10. The decree stands affirmed in first as also in second appeal. During execution the applicants filed objection -application claiming to be in possession of the said accommodation in their own rights. It was averred that they have perfected their title to the house in question by adverse possession. They, therefore, claimed that they cannot be evicted from the suit accommodation in execution of the said decree to which they were not party. The application was resisted by the decree holder -respondent Nos. 1 to 5. The executing Court, without entering into any detailed enquiry, dismissed the application holding that the applicants are the near relations of the JDrs and that the application has been made with intent to defraud the decree. Against this order of dismissal, the applicants have preferred Misc. Appeal before the Court of IIrd Addl. District Judge, Mhow. When this appeal came up for final hearing, the applicants moved an application praying for converting this Misc. Appeal into Regular Civil Appeal under section 96 of the Code of Civil Procedure. By the Order impugned, the Court below has dismissed this application observing that the appeal filed by the applicants is not maintainable either under O. XLIII R. 1 or u/s. 96 of CPC.

(3.) IN the instant case, the applicants who are not judgment debtors claimed to be in possession of the decretal premises in their own rights and on that basis resisted the execution. Their application, therefore, squarely fell within the provision of Rule 97 and the executing Court was, therefore, under obligation to adjudicate the same in accordance with the procedure laid -down in Rs. 98 to 103.