PRAVAT KUMAR GHOSH Vs. JHARANA GHOSH

JUDGEMENT

(1.) THIS writ application is directed against the order dated 10-5-2007 passed by the learned District Judge, Puri in RF. A. No. 43 of 2007 returning the memorandum of appeal for presentation before the appropriate Court on the ground that he had no pecuniary jurisdiction to entertain the appeal.

(2.) THE opposite party No. 1 had filed C. S. No. 119 of 2003 for specific performance of contract against opposite parties 2 to 8. During pendency of the suit, a compromise was effected between the parties and accordingly, the suit was disposed of in terms of the compromise on 3-7-2003. Opposite party no. 1 decree-holder filed Execution Case No. 15 of 2003 for executing the compromise decree, In terms of the writ issued by the executing Court, the. Amin Commissioner visited the spot on 11-5-2004 and found the petitioner in possession of the disputed house and accordingly, he sought for police help to execute the decree. At that point of time, the petitioner came to know about such decree in respect of the suit house under possession of the petitioner and accordingly, he filed an application under Order 21, Rule 97 read with Section 151 of the Code of Civil procedure as a third party intervenor and the said petition was treated as one under order 21, Rule 99, CPC. During adjudication of the said petition, though the executing Court held that the petitioner is in possession of the house, rejected the petition on the ground that the petitioner being a tenant cannot be protected under the said provision since he has no right to possess the suit property. Challenging the said order, petitioner preferred R. F. A. No. 43 of 2007 before the learned District Judge, Puri. The suit was valued at Rs. 2,50,000/ -. The learned District Judge in the impugned order held that the suit having been valued at rs. 2,50,000/-, the application filed under order 21, Rule 97 of the CPC should also be valued at the same and, therefore, he has no pecuniary jurisdiction to entertain the appeal. While holding thus, the learned District judge directed for return of the memorandum of appeal for presentation before this Court.

(3.) THE sole question raised in this writ application is as to whether an appeal filed against an order passed in an application filed under Order 21, Rule 97 of the CPC has to be valued at Rs. 2,50,000/- which is the valuation of the suit or it is to be treated like any other appeal arising of a petition. The learned counsel appearing for the petitioner contended that the suit was for specific performance of contract between the decree-holder and judgment-debtor and the petitioner was not a party in the said suit. After coming to know about the compromise decree, when the decree was put to execution, he had filed an application under Order 21, Rule 97 of the cpc, which is treated to be like any other petition. It was further contended that any order passed under Order 21, Rule 97 of the CPC has to be treated as a decree and, therefore, appeal lies. This appeal has no connection with the decree passed in the suit between the decree-holder and judgment-debtor and, therefore, the same need not be valued as that of the suit out of which the Execution Case arises. The learned counsel also contended that in the instant case, Section 7 (xi){cc) of the Court fees Act is applicable for the purpose of valuation of the appeal and therefore, the learned district Judge was not justified in returning the memorandum of appeal, on the ground that the appeal preferred against the order passed in the application under Order 21, Rule 97 CPC has to be valued as that of the suit. The learned counsel for the opposite party No. 1 referring to Section 16 (2) of the Orissa Civil Courts Act, 1984 submitted that an appeal from the decree or order of a Civil Judge (Senior Division)shall lie to a District Judge, where the value of the original suit in which or in any proceeding arising out of which the decree or order was made, did not exceed one lakh rupees. Referring to the aforesaid provision, it was contended by the learned counsel that the order passed on the application under order 21, Rule 97 of the CPC has to be treated as a decree and, therefore, the valuation of the suit is relevant for the purpose. The learned counsel for both the parties have referred to some decisions, but it is fairly submitted by both the learned counsel that the said decisions are not directly on the point in issue before this Court.