Kalla vs Radhakrishan
2022 Latest Caselaw 1813 MP

                                  1                                 CR-118-2021
        The High Court Of Madhya Pradesh
                  CR No. 118 of 2021
                       (KALLA Vs RADHAKRISHAN AND OTHERS)

Gwalior, Dated : 09-02-2022
       Heard through Video Conferencing.

       Shri N.K.Gupta, Sr.Advocate with Shri Ravi Gupta Advocate for the
petitioner.
       Shri Brajesh Tyagi, counsel for the respondents No.1 to 7.

This revision has been filed against the order dated 15.3.2021 passed by II Additional Civil Judge Class I, Sabalgarh district Morena whereby, the

application filed by the petitioner under order 21 Rule 97, 99 read with Section 151 of CPC in Execution Case No.113 of 1987 has been dismissed.

Heard learned counsel for the parties and perused their written submissions and the material placed on record.

Shri N.K.Gupta, learned Sr.Advocate for the petitioner submits that learned executing court vide impugned order has dismissed the application filed by the petitioner under Order 21 Rule 97, 99 of CPC without framing the points for determination and without conducting any inquiry. Thus, the learned executing court has not adhered to the scheme envisaged under order

21 Rule 97 to 103 of CPC. The impugned order suffers with patent illegality which can be corrected by this court under Section 115 of CPC or Article 227 of the Constitution of India. Hence, the revision is maintainable before this court. He has placed reliance upon the judgment passed in the cases of Amar Singh Vs. Pooran, reported in 2007 (2) MPLJ 215, Shyama Prasad Datta and Others Vs. Arun Kumar Vasudeo and others, reported in ILR (2010) MP 1588 and State of A.P. Vs. P.V.Hanumantha Rao (Dead) Through L.Rs and Another, reported in 2003 (10) SCC 121.

Besides, it has been contended on merits that the decree in question has not been passed against the applicant-petitioner or his predecessor in interest i.e. Harhet or his L.Rs. The applicant purchased the property from 2 CR-118-2021 Harhet on 17.8.1965. The sale deed was executed on a plain paper as the land was not mutated in his name. Afterwards on 31.5.1993, he got executed the registered sale deed of the disputed land from the L.Rs of Harhet. In the suit filed by the decree holder, Harhet was impleaded as proforma defendant through Mangilal whereas, Mangilal was not related to Harhet in any manner. He is in possession of the disputed property since 17.8.1965. He has

constructed the house over the disputed property. The map attached with the decree does not specifically identify the land for which, the decree has been passed. Thus, the decree is not executable. The impugned order deserves to be quashed and set-aside.

Learned counsel for the respondent (decree holder) submits that the impugned order dismissing the application under Order 21 Rule 97, 99 of CPC is to be treated as a decree against which, the revision is not maintainable. At the most, the aggrieved party could have filed an appeal against the said order. He has placed reliance upon the judgment passed in the case of Dattatay Naik Vs. Mangal and Another, reported in 1983 JLJ

242. It has been further contended that the civil suit filed by the decree holder in the year 1974 was decreed on 1.12.1980. The decree attained finality with the dismissal of second appeal on 18.2.1993. The decree holder is deprived of the fruits of the decree even after lapse of 47 years. Only to frustrate the decree, the sale deed has been executed just two months after dismissal of the second appeal. The present applicant earlier filed an application under Order 21 Rule 35 of CPC which was dismissed by the executing court on 14.12.1995. By suppressing the fact of dismissal of earlier application, this application has been filed after twenty five years. The executing court can very well dismiss the said application if it is filed by the purchaser who purchased the suit property during pendency of the suit or after passing of decree or if it is found in the obtained facts that the said application has been filed to frustrate or to cause delay in execution of the 3 CR-118-2021 decree. It is not permissible for the petitioner to raise objections regarding legal heirs of Harhet as no such objection was ever raised before. Learned executing court has dealt with all the aspects of the matter in view of the facts available on record therefore, no detailed inquiry was required. Thus, the learned executing court has rightly dismissed the application filed by the petitioner herein. Instead of filing an appeal, this revision petition has been filed only to cause further delay in the execution proceedings which deserves to be dismissed.

Heard. Considered.

In view of the rival submissions, the core question arises before this court is, as to whether the revision under Section 115 of CPC is maintainable

against the order passed on the application filed under Order 21 Rule 97, 99 of CPC?.

Rule 103 of Order 21 of CPC is relevant for this purpose, which is quoted below :

"103. Orders to be treated as decree : - 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".

Above provision clearly mandates that the orders adjudicating the applications filed under Order 21 Rule 97, 99 of CPC are to be treated as decree against which, appeal can be filed. Accordingly, a revision is not maintainable against such orders.

The Hon'ble Division Bench of this court in Dattatray Naik (Supra) has considered this issue and it has been held that the order passed by the executing court disposing of the application under Order 21 Rule 97 of CPC is appellable.

The Hon'ble Supreme Court in Ghan Shyam Das Gupta and Another Vs. Anant Kumar Sinha and others reported in AIR 1991 SC 2251 has also categorically held that the orders passed on the applications 4 CR-118-2021 filed under Order 21 Rule 97, 99 of CPC are to be treated as decree and the same are appellable and in such a situation, the High Court cannot exercise it's writ jurisdiction as alternative remedy is available before the civil court.

Thus above view is fortified by the verdicts of Hon'ble Supreme Court and this court.

Since the appellate court has ample power to correct the error of law raised in an appeal, the contention put forth on behalf of the petitioner is not tenable that instead of appeal, a revision can be filed in the cases where error of law is committed.

It has not been held in any of the judgments cited on behalf of the petitioner that the revision is maintainable against the order passed in the application under Order 21 Rule 97, 99 of CPC. Therefore, the same do not help the petitioner at all.

In view of the above discussion, this revision petition is held to be not maintainable. Therefore, without discussing the merits of the case, the same is dismissed.

(SATISH KUMAR SHARMA) JUDGE

Rks

RAM KUMAR SHARMA 2022.02.10 14:14:37 +05'30'