PRABHU NATH PRASAD SON OF RAMADHIN CHOUDHARY RESIDENT OF VILLAGE TEKARI Vs. SAGIR AHMAD SON OF ABDUL RAHMAN

JUDGEMENT

(1.) THIS appeal is directed against the order dated 15.12.2000 passed by 3rd Additional District Judge, Siwan in Misc. Appeal No. 16 of 1992 affirming the order dated 08.04.1992 passed by the Ist Munsif, Siwan in Misc. Case No. 45 of 1983.

(2.) THE short facts are that the appellant herein filed an application under Order 21 Rule 58 of the Code of Civil Procedure (hereinafter referred to as the 'Code') registered as Misc. Case No. 45 of 1983 in the Court of Munsif Ist Court, Siwan. THE said application was however considered as an application under Order 21 Rule 97 of the Code. Upon hearing the parties and their respective evidences on record the aforesaid application was dismissed vide order dated 08.04.1992. THE order dismissing the application was assailed by the appellant by filing the Miscellaneous Appeal No. 16 of 1992 which was disposed of by the Additional District Judge, Siwan vide order dated 16.06.1992. THE respondents on being aggrieved preferred Misc. Appeal No. 246 of 1992 in this Court which was disposed of by order dated 11 .01.2000 directing the lower Appellate Court to dispose of the miscellaneous appeal in accordance with law considering the materials available on the record. THE said Misc. Appeal No. 16 of 1992 upon hearing was dismissed by order dated 15th December, 2000. THE appellant now being aggrieved by the aforesaid order filed the present appeal in this Court.

(3.) LEARNED counsel for the appellant realising the above legal position that no appeal lie against the order passed in an appeal under sub-section (2) of section 104 of the Code, sought permission to convert this appeal into a civil writ application. LEARNED counsel for the respondents seriously objects the prayer of the appellant and submits that without any valid justification the appellant has continued the proceeding for such a long time enjoying the stay of the execution of decree for possession.