SURAJMAL JAIN Vs. PRABIR KUMAR SETT

JUDGEMENT

(1.) Prabir Kumar Sort, the respondent herein, has obtained a decrees for eviction in Ejectment Suit No. 892 of 1977 in the City Civil Court at Calcutta against Smt. Anadi Devi Agarwalla. The respondent put the said decree into execution. According to the report of the Bailif, the present appellant had resisted the execution of the said decree claiming to be a sub-tenant under the judgment-debtor. Tina upon, the decree-holder respondent made an application in the executing court under Order 21, Rule 97 of tho Code for execution of the writ of delivery of possession with police help. The present appellant had opposed the said application-claiming to be a sub-tenant of the suit premises long before the year 1956. Tho learned Judge, 4th Bench, City Civil Court at Calcutta by his judgment and decree under appeal allowed Misc. Casa under Order 21, Rule 97 of the Code and directed the decree holder to get possession of the suit premises through police help. The appellant, being aggrieved, by the said order, presented this Memorandum in Appeal which has bees described as an Appeal from Original Decree. The appellant has paid ad-valorem court fees upon the Memorandum of Appeal which has been valued at Rs. 3,000.00.

(2.) the Stamp Reporter reported that the Memorandum of Appeal should be classified as "Appeal from Order". Mr. Roy Chowdhury, learned advocate for the petitioner, has disputed the correctness of the said report end has submitted that the Memorandum of Appeal has been properly classified as one from origins decree.

(3.) Rule 103 of Order 21 of the Code of Civil Procedure has been amended by Coda of Civil Procedure (Amendment) Act, 1976, (Act 104 of 1976). the said rule now provides "Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall lave the same force and be subject to the same conditions as to appeal or otherwise as if it were decree".