SAIFUL NANDLAL Vs. AKKAS ALI OPPOSITE PARTY

JUDGEMENT

(1.) THE instant revisional application under Section 115 of the Code of Civil Procedure is taken up for contested hearing at the motion stage in presence of the Caveator being directed against order dated 21-12-1996 passed by the 3rd Court of Munsif at Srerampore in Title Execution Case No. 4 of 1996 on an application under Order 21, Rule 106 read with Section 151 of the Code of Civil Procedure. At the initial stage of the hearing of the instant application a preliminary objection was raised by the Opposite Party about the maintainability of the revisional application as, according to the contention of the Opposite Party, the same is open to appeal in terms of Order 43, Rule 1(ja) of the Code of Civil Procedure. It has been contended that in terms of the provisions contained in Rule 106 of Order 21, if an order is made under sub-rule (2) of Rule 105 or the Opposite Party against whom an order is passed ex parte under sub-rule (3) of that Rule, one may apply to the Court to set aside the said order if the court is satisfied that there was sufficient cause for non appearance when the application was called on for hearing. It has also been brought to the notice of this Court that in a proceeding under Order 21, Rule 97 of the Code of Civil Procedure there was a resistance offered against the holder of the decree for possession of the immovable property and as such complaint is made about resistance. In terms of sub-rule (2) of Order 21, Rule 97 the Court shall proceed to adjudicate upon the application in accordance with the provisions and orders after adjudication can be passed in terms of Order 21, Rule 98 of the Code of Civil Procedure. Against such an order which is presumably one under Order 21, Rule 98 of the Code of Civil Procedure, an appeal has been filed and there an application for stay and/or injunction was moved which was refused. THE point sought to be taken by the Opposite Party by placement of reliance on the decision in the case of Smt. Santilata Paul v. Nanda Kishore Mukherjee, reported in 1981 (1) CHN 401 : (AIR 1981 Cal 219) where the single Bench has held that in terms of the provision of Order 21, Rule 103 of the Code of Civil Procedure when an application has been adjudicated under Rule 98, such order will be treated as a decree and adjudication of an application under Rule 97 for determination of all questions envisaged by Rule 101, an order has to be passed by the Court according to the provisions of Rule 98. Since Rule 103 says that an adjudication of an order under Rule 98 or Rule 100 is appealable it must be held that such order passed in a proceeding under Order 21, Rule 97 and when it assumes a texture of Rule 98 after adjudication it must be held to be appealable. Rule 98 is wide enough to cover all cases of resistence or obstruction by a person including a transferee pendente lite. A further reference was made by Mr. Chakraborty, learned Advocate 8 appearing for the Opposite Party, to a reported decision of this Court reported in 1980 (2) CLJ 161, where the Division Bench of this Court in the case of Surajmal Jain v. Prabir Kumar Sett, held that the appeals preferred under orders made under Rule 98 or Rule 100 of Order 21 of the Code of Civil Procedure are to be classified as appeal from orders and they are required to be heard under Order 41, Rule 11 of the Code of Civil Procedure. It has been further observed in the said decision that this Court in the matters of practice and procedure have made no distinction between the orders which are deemed to be decrees under Section 2(2) of the Code of Civil Procedure and the orders which have the force of decrees. To repel the contention so advanced by the Opposite Party, Mr. Sengupta, learned Advocate appearing for the petitioners, has tried to interpret in a streneous bid to give his own reading of Order 43, Rule 1, Clause (ja) of the Code of Civil Procedure. Mr. Sengupta has lead special stress on the proviso added therein by pointing out that order on the original application referred to in sub-rule (1) of Rule 105 of that order is appealable. According to Mr. Sengupta, the order on the original application referred to in Rule 105(1) relates to foregoing Rules which include inter alia amongst others Order 21, Rule 97 and according to the further contention of Mr. Sengupta, Order 21, Rule 97 has not been made distinctly appealable under Order 43, Rule 1 and also Rule 98 of Order 21 is not included in the catena of categorisation of appealable orders made under Order 43, Rule 1 of the Code of Civil Procedure. This Court has given anxious consideration to Mr. Sengupta's submission. It is necessary to deal with the effect of foregoing amendment of the Amending Act of 1976. When there is resistance or obstruction, a misc. case is filed according to provisions of Rule 97 and determination of the same is then made Rule 98(1). That Rule postulates that upon determination of the question referred to in Rule 101 the Court shall pass necessary order. It appears from Rule 103 that when an application has been adjudicated upon under Rule 98, such order will be treated as a decree. So, on adjudication of an all questions envisaged by Rule 101, an order has got to be passed by the Court concerned according to the provisions of Rule 98. Since Rule 103 says that on addication of an order under Rule 100 is appealable, then the order impugned must be open to appeal. In this context a look at the other decision reported in 1982 CLJ 161 (supra) where the Division Bench also held that the appeals preferred against orders under Rule 98 or Rule 100 of Order 21 of the Code of Civil Procedure are required to be classified as appeal from order. Under the Appellate Side Rules and also under the Judicial Department Manual, appeals coming from orders which are deemed to be decrees under Section 2(2) of the Code are all classified as appeals from orders. It is also significant to point out that in fact an appeal has been preferred against the order passed in a proceeding under Order 21, Rule 97 when it becomes an order after determination under Rule 98 and as such after the appeal having been filed and the petitioners having failed to obtain necessary relief the petitioners cannot be simultaneously allowed to fall-back upon the alternative remedy even if it is assumed to be there. THE petitioners' conduct also appears to be tinctured by the mischief flowing from the doctrine of estoppel by eloption. As such this Court cannot but hold that the order impugned is open to appeal and revision is not maintainable. THErefore the preliminary point raised by the Opposite Party about the maintainability of the revisional application is hereby sustained. As the revisional application is not maintainable as the order impugned is open to appeal. Though exhaustive arguments have been advanced which are all of substantial nature and are of significance by Mr. Sengupta, the learned Advocate for the Petitioners, that order of police help in execution of a decree cannot be passed without issuance of a notice of show-cause to the aggrieved party and the order impugned should be resonant with reasons by reflection of an objective opinion that unless police help is given the execution will not be effected when serious danger to the public peace and non recording of such reasons can be fatal for allowing an order for police help. THE question may be of germane significance and Mr. Sengupta has strongly relied in support of his contention to a reported decision in the case of Gopi Krishna Majhi v. Judhisthir Dey reported in AIR 1995 Cal 263 but the said decision cannot come to the help of the petitioners in view of the patent fact that the order impugned is an appealable one and appeal has already been preferred and the same is pending. THErefore the said question can be gone into in appeal if suitableapplication under Rule 97 for determination of all questions envisaged by Rule 101, an order has got to be passed by the Court concerned according to the provisions of Rule 98. Since Rule 103 says that on addication of an order under Rule 100 is appealable, then the order impugned must be open to appeal. In this context a look at the other decision reported in 1982 CLJ 161 (supra) where the Division Bench also held that the appeals preferred against orders under Rule 98 or Rule 100 of Order 21 of the Code of Civil Procedure are required to be classified as appeal from order. Under the Appellate Side Rules and also under the Judicial Department Manual, appeals coming from orders which are deemed to be decrees under Section 2(2) of the Code are all classified as appeals from orders. It is also significant to point out that in fact an appeal has been preferred against the order passed in a proceeding under Order 21, Rule 97 when it becomes an order after determination under Rule 98 and as such after the appeal having been filed and the petitioners having failed to obtain necessary relief the petitioners cannot be simultaneously allowed to fall-back upon the alternative remedy even if it is assumed to be there. THE petitioners' conduct also appears to be tinctured by the mischief flowing from the doctrine of estoppel by eloption. As such this Court cannot but hold that the order impugned is open to appeal and revision is not maintainable. THErefore the preliminary point raised by the Opposite Party about the maintainability of the revisional application is hereby sustained. As the revisional application is not maintainable as the order impugned is open to appeal. Though exhaustive arguments have been advanced which are all of substantial nature and are of significance by Mr. Sengupta, the learned Advocate for the Petitioners, that order of police help in execution of a decree cannot be passed without issuance of a notice of show-cause to the aggrieved party and the order impugned should be resonant with reasons by reflection of an objective opinion that unless police help is given the execution will not be effected when serious danger to the public peace and non recording of such reasons can be fatal for allowing an order for police help. THE question may be of germane significance and Mr. Sengupta has strongly relied in support of his contention to a reported decision in the case of Gopi Krishna Majhi v. Judhisthir Dey reported in AIR 1995 Cal 263 but the said decision cannot come to the help of the petitioners in view of the patent fact that the order impugned is an appealable one and appeal has already been preferred and the same is pending. THErefore the said question can be gone into in appeal if suitable 9 occasion arises but this Court in view of its finding that revision is not maintainable cannot entertain the same question by embarking into a scrutiny in the domain of merits of the case. As such this Court is not in a position to interfere with the impugned order. Accordingly, the revisional application fails and the same stands rejected on contest. THE interim orders, if any, will stand vacated in view of the order of dismissal of the revisional application. By way of a supplementary application some other orders have been attempted to be clubbed together in a composite revisional application which cannot be done in a composite manner and by way of supplementary application in a pending application as parent application stands dismissed. THErefore, supplementary application has no independent limb to stand on and the said supplementary application is also not capable of being entertained in one composite revisional application by placement of purported relevance on a supplementary application which cannot be the off-shoot of the main application.Petition dismissed.