The High Court of Calcutta recently ruled that “in evaluating maintainability, courts need to assess the necessity of the issue. If the resolution of the issue is likely to influence other matters, it can be regarded as adjudication.”
This decision came while dismissing a petition filed under Article 227 of the Constitution of India, challenging the order passed by the Learned Civil Judge on 07.11.2022, which rejected the petitioner’s application under Order XXI, Rules 97, 98, and 101 of the Code of Civil Procedure (hereinafter referred to as “CPC”).
Brief Facts:
The original case arose out of the Title Execution Case in which the petitioners prayed to declare the original decree passed by this Hon’ble Court not executable on account of the same being a nullity. In the decree, the direction of eviction of the judgment debtors from the decretal property together with damages and mesne profits was given. The petitioners herein filed a case under Order XXI Rules 97, 98, and 101 of the CPC which was heard by the learned Judge, and vide the impugned order dated 07.11.2022, the same was dismissed on the ground of being premature. Being aggrieved by and dissatisfied with the order of dismissal, the petitioners preferred this present revisional application.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that a careful perusal of the impugned order will make it clear that the learned Trial Judge did not adjudicate the issues that were raised under Order XXI Rules 97, 98, and 101 of the CPC and therefore the impugned order is indeed revisable and not appealable.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that an order disposing of an application under Order XXI Rule 97 of the CPC is an appealable order and not revisable.
Observations of the court:
The court noted that the present revisional application needs to pry into the sole determining issue i.e. whether deliberation on the point of maintainability can be considered as a part of adjudication or not.
The Court observed that there is no bar under the law to decide the maintainability of the claim as a preliminary issue if the outcome is likely to make the rest of the issues redundant. The Court said that while considering the issue of maintainability, the Courts have to decide whether they are necessary, and if in case the outcome is likely to affect the rest of the issues then it can indeed be seen as a form of adjudication. Decisions on maintainability do not inherently address the merit of the case. A decision on the sole issue of maintainability can indeed be considered a form of adjudication.
The decision of the Court:
The Calcutta High Court, dismissing the petition, held that although the impugned order is not a traditional decree, it satisfied all tests of a deemed decree by adjudication of the matter in controversy conclusively
Case Title: Vikas Parolia & Ors. vs. Bhartiya Steel & Engineering Company Pvt. Ltd. & Ors.
Coram: Hon’ble Justice Bibhas Ranjan De
Case No.: C.O. 422 of 2023
Citation: 2024 Latest Caselaw 3334 Cal/2
Advocate for the Petitioner: Mr. Arijit Bardhan
Advocate for the Respondent: Mr. Utpal Bose
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