Calcutta High Court (Appellete Side)
Daughter Of Khandkar Mauddin ... vs Sk. Kasem Ali & Ors on 16 November, 2022
S/L 40
16.11.2022
Court. No. 12
Suvayan
CO 1944 of 2022
Minor Khandekar Tamanna Khatun
Daughter of Khandkar Mauddin Hossain
Vs.
Sk. Kasem Ali & Ors.
Mr. Rabindra Narayan Dutta
Mr. Sibasis Ghosh
Mr. Kare Krishna Halder
Mr. Koushik Bhattacharya
Mr. A. Mukherjee
...for the petitioner.
Affidavit-of-service as filed on behalf of the
petitioner be kept with the record.
Learned Advocate for the petitioner is present.
In spite of service none turn up on behalf of the
opposite party. In view of such, this Court proposes to
dispose of the instant revisional application in absence of
the opposite party.
Heard learned Advocate appearing for the
petitioner at length. Perused the certified copy of the
impugned order and the revisional application as filed
before this Court including its annexures.
On perusal of the entire materials as placed before
this Court it reveals that by the impugned judgment dated
2
16.12.2019, learned Revisional Court, i.e., learned
Additional District and Sessions Judge, Kandi while
allowing the Civil Revisional Case No. 1 of 2018 set aside
the order No. 26 dated 05.05.2018 as passed by learned
Civil Judge (Jr. Division), 1st Court, Kandi in Misc. (L.R.)
Case No. 2 of 2014 thereby rejecting the
respondent/petitioner's execution application under
Section 151 of the Civil Procedure Code.
On perusal of the Order No. 26 dated 05.05.2018
as passed in Misc. (L.R.) Case No. 2 of 2014, it reveals
that by the said order the learned executing Court, i.e., the
Court of learned Civil Judge (Jr. Division), 1st Court,
Kandi, Murshidabad was pleased to reject the present
opposite party's three applications under Order 21 Rules
99, 100 and 101 of the Code of Civil Procedure and at the
same time allowed the petition for police help as filed by
the present petitioner before the said executing Court.
At the time of hearing, learned Advocate for the
present revisionist draws attention of this Court to the
provisions of Order 21 Rule 103 of the Code Civil
Procedure. It is argued that an order passed while
disposing a petition under Order 21 rules 97, 99 and 101
of the Code Civil Procedure is to be treated as a decree
and thus, the said order is appealable in nature. It is
contended while passing the impugned judgment that the
learned revisional court overlooked the aforesaid
provision of law and thus, wrongly exercised revisional
jurisdiction which he ought not to have done. It is thus,
contended that since the learned revisional court
exercised its jurisdiction wrongfully and, thus passed an
order which is not justifiable in eye of law the instant
revisional application as filed under Article 227 of the
Constitution may be allowed after setting aside the
impugned judgment as passed by the learned revisional
court.
In considered view of this Court for effective
disposal of the instant revisional application a look to the
provision of Order 21 Rule 103 of the Code of Civil
Procedure is necessary and the same is as under:
"103. Order to be treated as
decrees:- Where any application has
been adjudicated upon under Rule 98 or
Rule 100, the order made thereon shall
have the same force and be subject to
the same conditions as to an appeal or
otherwise as if it were a decree."
On bare perusal of the aforesaid provisions of law,
it appears to this Court, that the legislatures in their
wisdom incorporated Order 21 Rule 103 Code of Civil
Procedure clearly indicating that any application which
has been adjudicated under the provisions of Order 21
Rules 98 and 100 of the Code of Civil Procedure is to be
treated as a decree and, therefore, an appeal has to be
preferred challenging such order/orders. On perusal of
the Order No. 26 dated 05.05.2018 as passed in Misc.
(L.R.) Case No. 2 of 2014 by the learned Civil Judge (Jr.
Division), 1st Court, Kandi, Murshidabad, it reveals that
the petitions as filed by the present opposite parties under
Order 21 rule 99, 100 and 103 of the Code Civil Procedure
have been rejected and, therefore, such order has to be
treated as a decree and challenging that order, an appeal
has got to be filed. Since before the learned revisional
court, a revisional application has been preferred ignoring
the correct provision of law and since the learned
revisional court has disposed of the said revisional
application overlooking the aforesaid provision of law, in
considered view of this Court the impugned judgment as
passed by the revisional court in Civil Revision Case No. 1
of 2018 cannot be sustained.
In view of the discussion made hereinabove, the
instant revisional application stands hereby allowed. The
impugned judgement dated 16.12.2019 as passed in Civil
Revision No. 1 of 2018 by the learned Additional District
Judge, Kandi, Murshidabad is set aside.
Consequently the Order No. 26 dated 05.05.2018
as passed in Misc. Case No. 02 of 214 by learned Civil
Judge (Jr. Division), 1st Court, Kandi, Murshidabad is
hereby affirmed.
Learned Civil Judge (Jr. Division), 1st Court, Kandi,
Murshidabad is hereby directed to dispose of the
execution case from which Misc. (L.R.) Case No. 2 of 2014
arose as early as possible preferably within three months
from the date of communication of this order.
With the abovemention observation, the revisional
application being Co 1944 of 2022 is disposed of.
Urgent photostat certified copies of this order, if
applied for, be supplied to the parties upon compliance
with all the necessary formalities.
(Partha Sarathi Sen, J.)
