MITHAN LAL Vs. GANGA DEVI TRUST

JUDGEMENT

(1.) THIS order will dispose of Civil Revision Nos. 1501, 1521, 1525, 1537 and 1550 of 1977, which contain similar questions of law. The facts in the judgment are being given from Civil Revision No. 1501 of 1977.

(2.) SMT . Ganga Devi Trust (hereinafter referred to as the Trust) instituted a suit for ejectment of Mithan Lal from the premises in dispute, situated in Ambala Cantt., which was dismissed by the trial Court. An appeal was taken by the Trust to the Senior Subordinate Judge, Ambala, who accepted the same. Mithan Lal came up in second appeal to this Court which was dismissed as withdrawn. Subsequently the Trust started execution of the decree passed by the first Appellate Court, wherein objections were raised by him, inter alia, on the ground that the first Appellate Court had not passed the decree in specific terms and consequently it was inexecutable. The executing Court decided the objections raised by the judgment -debtor against him. He came up in revision petition to this Court. At the time of preliminary hearing, the learned Single Judge admitted it only on one ground. The admitting order is as follows:

(3.) I have heard the learned Counsel for the parties at a considerable length and find force in the contention of the learned Counsel for the Respondent. It is not disputed that the first Appellate Court set aside the decree of the trial Court, but did not pass further order that the Petitioner shall be ejected from the property in dispute. Order 41, Rule 35 enjoins that the decree shall contain, inter alia, a clear specification of the relief granted or other adjudication made. The decree was prepared in accordance with the judgment and there was no specific direction in the decree for ejectment of the Petitioner. It is true that the proper course for the first Appellate Court was to pass a decree in consonance with Order 41, Rule 35, but if it failed to do so, this Court cannot interfere in revision against an order under Section 47 of the Code. Section 99 -A has been added in the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1976, wherein it is provided that no order under Section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case. Section 115, which relates to revisions, has also been modified by the said Amendment Act and a proviso has been added to Sub -section (1) of the said section. It is said in the proviso that the High Court shall not, under Section 115 vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. From a reading of the abovesaid section, it is evident that unless the order occasioned a failure of justice or caused irreparable injury, it cannot be upset by this Court. In the present case, it is not disputed that the suit was for ejectment of the Petitioner and it was decreed by the first Appellate Court. It appears, through an oversight the order of ejectment was not specifically passed. Consequently it was also not incorporated in the decree. It is only an irregularity which does not vitiate the decree. If the judgment is read along with the plaint, the only conclusion is that the appellate Court ordered ejectment of the Petitioner from the premises in dispute. The appellate Court has also the power to amend the decree at this stage. The objection raised by the Petitioner is of a technical nature and no irreparable injury would be caused to him in case the order of the executing Court is not reversed. Section 99 -A also bars the jurisdiction of this Court to upset such a decision as it does not prejudicially affect the right of the Petitioner.