SANJIB CHAKRABORTY Vs. RAMANATH GHOSH

JUDGEMENT

(1.) In course of hearing of the application for stay, the parties are agreed that the main appeal may be disposed of. Treating the appeal, by consent of the parties, as on the day's list, the appeal is taken up for hearing.

(2.) After hearing the learned counsel for the respective parties and perusing the materials placed before this Court, it appears that an application under Order 21 Rule 97 of the Code of Civil Procedure registered as Miscellaneous Case No. 1141 of 1997 was filed by the decree holder. In connection therewith the judgment debtor/appellant had filed an application under Order 21 Rule 101 of Code of Civil Procedure registered as Miscellaneous Case No. 6287 of 2000. But from the order appealed against, it appears that the Executing Court without disposing of the application under Order 21 Rule 101 of Code of Civil Procedure had disposed of the application under Order 21 Rule 97 of Code of Civil Procedure. These facts are not in dispute.

(3.) The learned counsel for the appellants contends that the application under Order 21 Rule 97 of Code of Civil Procedure could not be disposed of without disposing of the application under Order 21 Rule 101 of Code of Civil Procedure. Therefore, the impugned order is liable to be set aside. The learned counsel for the respondent, on the other hand, contends that the decision on the application under Order 21 Rule 97 is an adjudication of the disputes between the parties. From the order appealed against, he attempts to point out that virtually the question raised under Rule 101 has since been determined, though specific mention has not been made therein. It is the substance not the form which is material. From the materials shown to this Court, he attempts to make out a case that the question raised in the application under Rule 101 has since been determined in the proceedings under Rule 97. Mere technically will not invite this Court to intervene.