Smt Zareena Taj vs Smt. Saleema Begum
2023 Latest Caselaw 5647 Kant

                             1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF AUGUST, 2023

                         BEFORE

        THE HON'BLE MR. JUSTICE K. NATARAJAN

         REGULAR FIRST APPEAL NO.1423 OF 2022

BETWEEN:

SMT ZAREENA TAJ
W/O SYED AFSAR
AGED 53 YEARS
R/AT NO 239, 9TH CROSS
TELECOM LAYOUT
VIJAYANGAR
BENGALURU 560 026.                       ... APPELLANT

(BY SRI ARIMARDHAN SHARMA, ADVOCATE
 FOR SRI MANJUNATH V., ADVOCATE (VC))

AND:

   SMT. SALEEMA BEGUM
   SINCE DECEASED BY LRS

1 . S SYED RAFI
    AGED ABOUT 68 YEARS
    S/O LATE SALEEMA BEGUM
    AND SYED PACHA SAHEB
    R/AT NO.35, 4TH CROSS
    7TH CROSS ROAD
    VINAYAK NAGAR
    J.P. NAGAR 5TH PHASE
    BENGALURU - 560 078

2 . S SYED FIAZ S
    AGED ABOUT 67 YEARS
    S/O LT SALEEMA BEGUM AND
                           2


   SYED PACHA SAHEB

   R/AT NO.1 AND 2, 2ND FLOOR,
   4TH CROSS, 22ND MAIN,
   RIZWAN MAZID ROAD
   J P NAGAR 5TH PHASE
   BENGALURU - 560 078

3 . SMT MEHRUNNISSA
    W/O LATE AMEER JAN
    R/AT NO 26, SY NO 50/1
    SARAKKI VILLAGE, 14TH CROSS
    BEHIND NAGARJUNA APARTMENTS
    KANAKAPURA MAIN ROAD
    J P NAGAR 1ST PHASE
    BENGALURU - 560 078
                                       ... RESPONDENTS

(BY SRI H.S. CHANDRASHEKAR, ADVOCATE FOR R1 AND R2)

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF C.P.C. AGAINST THE ORDER DATED 15.07.2022 PASSED ON IA NO.5 IN MISC. No. 470/2019 ON THE FILE OF THE VII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU , ALLOWING THE IA NO.5 FILED UNDER SECTION 151 OF CPC., TO SET ASIDE THE COMPROMISE DECREE PASSED IN O.S.NO.4872/2016 DATED 24.10.2016 AND RESTORE THE SUIT ON FILE AND DISPOSE OF THE CASE ON MERITS IN THE INTEREST OF JUSTICE AND EQUITY.

THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.08.2023 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

ORDERS ON MAINTAINABILITY

The office has raised an objection regarding

maintainability of the appeal under Section 96 read

with Order XLI Rule 1 of CPC on the ground that suit

is still pending and there is no decree in order to

challenge the same in this appeal.

2. The learned counsel for the appellant has

contended that this appeal is maintainable under

Section 96 read with Order XLI Rule 1 of CPC stating

that there was compromise decree passed by the Trial

Court, subsequently, on the application filed by the

respondent, the decree was set aside and restored in

the application in Misc.No.470/2019 filed under

Section 151 of CPC.

3. The respondent counsel also objected the

appeal mainly on the ground that there is no decree to

challenge the same in this appeal and even the

appellant cannot file any Miscellaneous appeal under

Order XLIII Rule 1 of CPC.

4. Having heard the arguments and perused

the records. Admittedly, there was compromise decree

passed by the Trial Court under Order XXIII Rule 3 of

CPC and later on the application filed by one of the

party under Section 151 of CPC which was numbered

as Misc. No.470/2019 and the Trial Court set aside the

compromise decree dated 15.07.2022 and restored

the original suit which is pending in the Trial Court.

5. Admittedly, there is no decree passed by

the Trial Court against which this appeal under Section

96 of CPC is filed and admittedly, the order challenged

by the appellant was interlocutory order and which

cannot be challenged under Order XLIII Rule 1 of CPC

as the Order XLIII Rule 1 of CPC under Section 104 of

CPC (a to w) as mentioned are the orders shall have

to be challenged under Order XLIII Rule 1 of CPC.

6. Section 104 of CPC read as under:

"104. Orders from which appeal lies.- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:--

[***]

(ff) an order under section 35A;]

(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules:

[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]

(2) No appeal shall lie from any order passed in appeal under this section."

7. On perusal of the entire provisions of

Sections 96 and 104 of CPC and under Order XLIII

Rule 1 of CPC, the impugned order does not fall under

any of the provisions for filing this appeal.

8. The suit is now pending for consideration,

such being the case, this appeal under Section 96 of

CPC is not maintainable.

9. Accordingly, the appeal is dismissed as

not maintainable.

Sd/-

JUDGE

GBB