Smt. Geeta Kumar vs Om Swarup And Another
2023 Latest Caselaw 5143 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                 RSA No.98 of 2023
                                          Decided on: 4rd May, 2023
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    Smt. Geeta Kumar                                                  .....Petitioner




                                                                                     .

                                                 Versus

    Om Swarup and another                                        .....Respondents





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    Coram

    Ms. Justice Jyotsna Rewal Dua, J.

Whether approved for reporting? 1

For the Petitioner: Mr. G.D. Verma, Sr, Advocate with Mr. Pradeep Verma, Advocate.

For the Respondents: None

------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge

CMP No. 4854 of 2023

For the reasons stated in the application, delay

in re-filing the appeal is condoned. The application is

allowed and stands disposed.

RSA No. 98 of 2023

The present appellant is judgment debtor before

the learned Trial Court. Her application, moved under

Section 47 read with order 21, Rule 58 of Code of Civil

Procedure (CPC in short) for setting aside the attachment of

Whether reporters of print and electronic media may be allowed to see the order?

immovable property and granting compensation to the

respondent decree holders, was dismissed by the learned

Executing Court on 30.04.2012. The judgment debtor

assailed this order by preferring appeal under Section 104

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read with order 43, Rule 1 CPC. Learned Appellate Court

dismissed her appeal on 15.10.2022 with the observations

that no statutory right to appeal against the order passed

under Rule 58 of order 21 CPC has been provided, hence,

the appeal was not maintainable. Following findings of the

learned Appellate Court are germane:-

"8 Perusal of the record reveals that the instant

appeal has been preferred by the J.D. under

Section 104 read with Order 43 Rule 1 CPC against the order passed in objections filed by J.D. under Section 47 CPC read with Order 21 Rule 58 CPC by learned Executing Court. Perusal of Section 104 as well as Order 43 Rule

1 CPC reveals that no statutory provisions has been provided for an appeal against an order passed under Order 21 Rule 58 CPC. furthermore, Order 21 Rule 103 contains the

provisions to the effect that 'where any application has been adjudicated upon under

Rule 98 or Rule 100, the order made thereon shall have the same force and be subjected to the same conditions as to an appeal or

otherwise, as if it were a decree', so only order passed under Rule 98 of Order 21 or Rule 100 of Order 21 are appealable orders. Further, Section 47 of the CPC has been amended vide Amendment Act of 1976, whereby sub-clause (2) has been deleted. Similarly, the definition of word 'decree' as provided in Section 2 (2) of CPC has also been amended and words Section 47 or has been deleted/omitted vide Amendment Act of 1976 in order to curtail the dilatory tactics being adopted by J.Ds by assailing each

and every order passed in the execution application and right to prefer an appeal against each and every such order has been taken away.

9. Before parting, it is relevant to observe that during the pendency of this appeal, number of

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applications under Order 41 Rule 47 CPC viz-a-

viz., applications dated 19.02.2014, 05.10.2015, 28.09.2021 and 19.05.2022 have been filed by the J.D./appellant and constantly

in each and every application, same set of documents sought to be placed or brought on record, which itself is an indication that dilatory tactics have been used by the J.D. to delay the disposal of instant appeal and

consequently to delay the execution of the judgment and decree passed by the learned trial court.

"10 In view of the aforesaid discussion, as no

statutory right to appeal against order passed

under Rule 58 of Order 21 of CPC has been provided, as such, the instant appeal is held to be not maintainable. Accordingly, point No.1 is answered in negative".

2. Aggrieved against the above order passed by the

learned Appellate Court on 15.10.2022, the judgment

debtor has now come up in the instant regular appeal

preferred under Section 100 of the Code of Civil Procedure.

Notwithstanding, the above extracted findings of learned

First Appellate Court, it would also apt to notice that

recourse to Section 100 CPC can be taken only against a

judgment and decree passed in appeal by any Court, if the

High Court is satisfied that the case involves substantial

question of law. In the instant case, no decree has been

passed against the appellant by the learned First Appellate

court, rather the appeal preferred by the judgment debtor

under Section 104 CPC read with order 43 Rule 1 of the

Code of Civil Procedure was dismissed as not

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maintainable. Hence neither any substantial question of

law arises nor the present appeal is maintainable. For all

these reasons, this appeal is dismissed. Pending

miscellaneous application, also stand disposed of.

    May 4th, 2023
       tarun
                     r            to              Jyotsna Rewal Dua
                                                        Judge