FIRM SWAROOP SINGH SHER SINGH Vs. MOHAN LAL

JUDGEMENT

(1.) IN the execution proceeding for eviction, the objections of judgment debtor have been dismissed under Section 47 CPC by the executing court vide order dated 28.7.1997. The executing court had passed the order for delivery of possession to landlord on the basis of decree passed against tenant. This order of executing court was challenged before lower appellate Court by filing an appeal purporting it to have been filed under Section 96 read with Section 99-A CPC, which appeal has been dismissed by lower appellate Court vide impugned order dated 17.12.1997. After detailed discussion and on the objections having been taken by respondents, lower appellate court had held that the order passed in execution by the executing court, under Section 47 CPC was not appealable, because of the reason that sub-section 2 of Section 47 CPC had been omitted. It was further observed that the order passed under Section 47 CPC does not amount to decree, and therefore, no appeal can be filed under Section 96 CPC. It was observed that under Section 104 and Order 43 of CPC, it was not appealable order and thus the appeal was dismissed as not maintainable.

(2.) BEING aggrieved against the order dated 17.12.1997 the present revision petition has been filed. Counsel for petitioners has submitted that from bare reading of 99-A of CPC it is clear and for the reason that provisions of Section 99-A of CPC mentioned under the chapter of appeals, the appeal is maintainable, and therefore, the order of lower appellate Court is to be set aside.

(3.) COUNSEL for petitioner submits that because of the reason that Section 99-A itself mentions that no order passed under Section 47 shall be reversed or set aside except on the grounds/reasons mentioned in section 99 itself, it implies that appeal is maintainable, but interference in the appeal is restricted.