AMAR KUMAR Vs. ASHA DEVI

JUDGEMENT

(1.) This second appeal has been preferred against the judgment passed by the District Judge-1st, Chatra in Misc. (Civil) Appeal no. 07 of 2005, dismissing the appeal preferred by the appellant.

(2.) Mr. Ayush Aditya, learned counsel for the appellant has laid out the sequence of events culminating in preferring this Second Appeal. It is submitted that Execution Case no.1 of 2005 was instituted by the respondents/plaintiffs and the appellant (herein) had filed the objection petition under Order 21, Rule 97 C.P.C., to which a rejoinder was filed by the respondents/plaintiffs. The objection filed by the appellant was rejected by the Executing Court, whereupon, the appellant had preferred Miscellaneous Appeal before the District Judge who vide order dated 04.01.2006 had directed to return the memo of appeal observing that the order passed by the Executing Court was revisable and not appealable. Against the order of the District Judge, the appellant had preferred Second Appeal no. 12 of 2006 and this Court while setting aside the order of the District Judge held that the order passed under Order 21, Rule 97 was a decree in terms of Rule 103 CPC and was appealable under section 96 CPC and accordingly, the District Judge was directed to hear the appeal and pass necessary orders afresh, in accordance with law.

(3.) Mr. Ayush Aditya has eloquently argued that perusal of the judgment would ex-facie disclose that the court below while passing the order has not adhered to the requirement of provisions of section 96 CPC. In support of his contention he has relied on the decision reported in (2017) 2 Supreme Court Cases 415 in the case of Laliteshwar Prasad Singh and Others v. S.P. Srivastava (Dead) Through Legal Representatives and submitted that the Supreme Court has held that the first appellate court is bound to state the points for determination and the reasons for the decisions. It is urged that the order impugned herein, reveals that no independent findings has been recorded by the learned District Judge, rather he has merely reiterated the findings of the Executing Court. That in fact, the order has been passed without assigning any reasons or independent application of judicial mind. It is contended that this itself gives rise to a substantial question of law.