VED PRAKASH BHATT Vs. KALYAN PRASAD

JUDGEMENT

(1.) A suit had been filed by the respondent No. 1-Kalyan Prasad against respondent Nos. 2 & 3-Tejbhan Singh and Munnibabu for their eviction from the suit premises. The suit was decreed in favour of the plaintiff-respondent Kalyan Prasad and the decree was put into execution. While the execution case was pending, the appellant-herein Ved Prakash came out with a case that he had been inducted as a tenant in the suit premises by the decree-holder Kalyan Prasad and thus execution of the decree was resisted by filing a fresh suit for temporary injunction by Ved Prakash which was dismissed. The matter travelled up to the High Court by way of a revision wherein it was held that the Objector-Appellant herein could take this objection before the Executing Court and not by way of a fresh suit. The Objector-Appellant herein thus filed his objections u/s. 47 CPC before the Executing Court where he lost, as his objections were rejected by the said Court. Curiously, the Objector-Appellant herein, thereafter, filed a First Appeal before the District & Sessions Judge, Karauli which also was dismissed and against the said order, this Second Appeal has been preferred.

(2.) THE Appellant-Ved Prakash Bhatt admittedly was merely an Objector before the Executing Court and if his objections were rejected by the said Court ` the proper course for him in my view should have been to file a revision but instead of the same, he. preferred a First Appeal which although should not have been entertained by the District & Sessions Judge, Karauli, was rightly or wrongly entertained by the District Court and in the process the appellant-objector benefited by getting the mater lingered. Be that as it may, a Second Appeal against the judgment & order in a first appeal which itself was not maintainable, cannot be entertained as Sec. 96 of the Code of Civil Procedure needs no reiteration that an appeal meaning thereby first appeal shall lie from every decree passed by any Court exercising original jurisdiction. THEre is admittedly no decree in existence either in favour of the appellant or against him as he is merely an objector to the decree, passed in a suit in which he was not a party.