Kanhaiyalal vs Sunil Beri
2023 Latest Caselaw 3134 MP

                                                            1
                           IN       THE     HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                     BEFORE
                                    HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                              ON THE 21 st OF FEBRUARY, 2023
                                              SECOND APPEAL No. 1634 of 2022

                          BETWEEN:-
                          KANHAIYALAL S/O LATE SHRI PARASRAM, AGED
                          ABOUT 60 YEARS, NEW SINDHI COLONY BAIRASIYA
                          ROAD BHOPAL, DISTT. BHOPAL, (MADHYA PRADESH)

                                                                                         .....APPELLANT
                          (BY SHRI MOHD. AADIL USMANI-ADVOCATE)

                          AND
                          1.    SUNIL BERI S/O LATE RAMPRAKASH BERI, AGED
                                ABOUT 38 YEARS,

                          2.    SMT. SUNITA SINGH W/O SURESH SINGH, AGED
                                ABOUT 52 YEARS,
                                BOTH ARE R/O 11 BAGHIRA APARTMENT ARERA
                                COLONY BHOPAL, DISTRICT- BHOPAL, (MADHYA
                                PRADESH)

                          3.    BABULAL GUPTA S/O LAXMI PRASAD NEAR
                                ROYAL MARKET, OPPOSITE G.P.O. BHOPAL,
                                DISTRICT- BHOPAL, (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                          (BY SHRI ABHIJEET AWASTHY, ADVOCATE)

                                This appeal coming on for admission this day, th e court passed the
                          following:
                                                             ORDER

Heard on question of admission.

Appeal is admitted for final hearing on the following substantial question of law:

Whether first appellate Court has erred in dismissing the civil Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 2/21/2023 6:09:01 PM

appeal holding it to be not maintainable, filed against the order deciding the application under Order 21 Rule 97 CPC filed by the appellant?

With the consent of counsel appearing for the contesting parties i.e. the appellant/objector and respondents 1&2/decree holder, this second appeal is heard finally.

Undisputedly, upon the application filed under Order 21 Rule 46 and Order 21 Rule 97 read with Section 151 CPC dated 13/03/2018, the executing Court decided the objection raised by the appellant by passing speaking order dated 03/03/2020 against which the appellant/objector preferred civil appeal

before first appellate Court, although without mentioning provision in the memo of appeal. However, learned first appellate Court registered it as civil appeal, which in the light of judgment of this Court in the case of Dattatray Naik Vs. Mangal and another 1983 JLJ 242, was maintainable.

After arguments at length, learned counsel for the parties are also at consensus that the civil appeal was maintainable before the first appellate Court.

As such, without commenting upon merits and demerits of the case, the impugned order dated 17/06/2022 is hereby set aside and holding the civil appeal filed before the first appellate Court to be maintainable, the matter is remanded back to learned first appellate Court with the direction to restore the civil appeal on its original number and to decide the same afresh by passing speaking and reasoned order/judgment, without being influenced by the impugned order. Accordingly, this second appeal succeeds and is hereby allowed.

Interim application(s), if any, shall stand disposed off. Registry is also directed to send back the record of the Courts below Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 2/21/2023 6:09:01 PM

immediately for further action.

(DWARKA DHISH BANSAL) JUDGE RS

Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 2/21/2023 6:09:01 PM