Madhya Pradesh High Court
Kamla Bai (Deceased) Thourgh Lrs (A) ... vs Sardar Vijaysingh Rao(D) Thru Lr ... on 21 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:15076
1 SA-894-2006
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 21st OF JULY, 2025
SECOND APPEAL No. 894 of 2006
KAMLA BAI (DECEASED) THOURGH LRS (A) ASHOK SHARMA
Versus
SARDAR VIJAYSINGH RAO(D) THRU LR NANDITA AND OTHERS
Appearance:
Shri Anand Vinod Bhardwaj - Advocate for appellants.
Smt. G.K.Sachdeva - Advocate for respondents.
ORDER
This second appeal under Section 100 of CPC has been filed against
the judgment and decree dated 03.08.2006 passed by VII Additional District
Judge, Gwalior in RCA No.3A/2004 as well as judgment and decree dated
08.08.2005 passed by VIII Civil Judge, Class 1, Gwalior in Civil Suit
No.8A/2003.
2 . The appeal was admitted on the following substantial question of
law:-
"Whether the judgment and decree passed in Civil Suit No.100A/69 in
favour of Vijay Singh against Sitaram is binding on the purchaser from
Sitaram, when the suit itself was instituted after the suit property was
already sold out by Sitaram in favour of Kamla Bai?"
3 . Before considering the facts of this case, this Court would like to
consider the technical difficulty. It appears that by registered sale deed dated
16.06.1955, the disputed property which was owned by Vijay Singh who was
admittedly minor on the said date was sold to one Kishan Chand by guardian
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2 SA-894-2006
of Vijay Singh. Thereafter, Kishan Chand sold the property to Sitaram by
registered sale deed dated 29.09.1955. Thereafter, Sitaram sold the property
in dispute to the plaintiff/appellant by registered sale deed 03.11.1958.
4 . Civil Suit No.105-A/1969 was filed by Vijay Singh seeking
cancellation of registered sale deed dated 16.06.1955 stating that it was not
executed for any legal necessity. Admittedly, said suit was filed against
Kishan Chand and Sitaram and present appellant was not impleaded as party.
The name of Kishan Chand was deleted by order dated 06.02.1970 and suit
was proceeded ex parte against Sitaram and ultimately, by judgment and
decree dated 31.07.1970 (Ex.P/5), suit was decreed and Sitaram was directed
to handover the possession back to Vijay Singh. It appears that in execution
of the said decree, tenant of plaintiff was dispossessed and possession of
property in dispute was handed over to Vijay Singh. Thereafter, plaintiff
filed an application under Order 21 Rule 100 of CPC. By order dated
25.10.1972 (Ex.P/6), said application was dismissed as time barred. It
appears that thereafter, civil revision was filed before High Court and the
said civil revision was dismissed. After dismissal of civil revision by High
Court, plaintiff filed another application for review of order dated
25.10.1972 and by order dated 02.08.1972 (Ex.P/7), the application for
review was dismissed. However, one line was also mentioned by Court that if
so advised, then plaintiff can file a civil suit and accordingly, civil suit in
question was filed, which has been dismissed by Trial Court as well as
Appellate Court.
5. First question for consideration is as to whether the civil suit filed
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3 SA-894-2006
by plaintiff after dismissal of her application filed under Order 21 Rule 100
of CPC was maintainable or not?
6. Order 21 Rule 103 of CPC reads as under:-
"103. Orders 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."
7. From plain reading of this order, it is clear that order passed under
Order 21 Rule 100 of CPC will be a decree and has to be challenged as if it is
a decree. Thus, it is clear that first appeal should have been filed by plaintiff
against the order dated 25.10.1972 (Ex. P/6), but that was not done. It appear
that plaintiff filed a civil revision before this Court which was dismissed by
High Court. This fact is mentioned in the order dated 02.08.1973 (Ex.P/7) by
which an application filed by plaintiff for review of order 25.10.1972 was
dismissed. However, while dismissing the review application, it was
observed that if so desire, plaintiff may bring a civil suit.
8. It appears that even against the order dated 02.08.1973 the plaintiff
had filed Civil Revision No.481/1973 which was dismissed by this Court by
order dated 13.09.1973 with following observations.
"This revision petition has been filed by the petitioner against the
order passed by Third Civil Judge, Class II, Gwalior on an
application submitted by the petitioner under Section 151, 152 and
153, Civil Procedure Code, alleging that the earlier application
which the petitioner submitted before the Court below by way of
objection to the execution of the decree should be treated as not a
proper application and, therefore, the order passed earlier should
not come in his way. Although the order passed earlier on his
objection petition was challenged in the High Court by a revision
and that order has now become final as the revision petition has
been rejected. The learned court below rejected the application by
saying that it does not fall within any one of the sections of Civil
Procedure Code, under which such an application was made.
There appears to be no error in the order of the learned court
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4 SA-894-2006
below.
Consequently, I see no substance in the revision petition. It is,
therefore, summarily rejected without notice to the other side.
9 . Now the only question for consideration is as whether that Trial
Court had granted liberty to the plaintiff to file a civil suit by order dated
02.08.1973 passed in MJC No.14/1973 or not and even if it is treated to be a
liberty, then whether a such a liberty can be exhausted in the light of Order
21 Rule 103 of CPC or not?
1 0 . The only line in the order dated 02.08.1973 (Ex.P/7) which
according to the plaintiff is a silver line for the plaintiff to protect her interest
reads as under:
"धारा 21 िनयम 100 के अतंगत जो ोसीजर दया गया है का पूण प से फॉलो होना
पाया जाता है । आवेदक इस संदभ म य द चाहे तो कोई िस वल सूट ला सकता है । इस
कार आवेदन इन धाराओं म कवर न होने से िनर त कया जाता है ।"
11. By no stretch of imagination, the observation made by Trial Court
would make the subsequent suit filed by plaintiff maintainable in the teeth of
Order 21 Rule 100 of CPC. It is true that decree can be challenged by filing a
civil suit by pleading that decree was obtained by fraud, but said principle
would not apply to the facts and circumstances of the case. Appellant had
already filed an application under Order 21 Rule 100 of CPC which was
rejected by order dated 25.10.1972. Against the said order, only remedy
available to the plaintiff was to file Regular Civil Appeal under Section 96 of
CPC and that was not done and therefore, order dated 25.10.1972 (Ex.P/6)
had attained finality. Furthermore, it is clear from the order dated 02.08.1973
(Ex.P/7), plaintiff had also filed a civil revision before this Court which was
dismissed. For the reasons best known to the appellant, she has not filed a
copy of order passed by this Court in the civil revision.
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5 SA-894-2006
12. Under these circumstances, this Court is of considered opinion that
civil suit which was filed by plaintiff by itself was not maintainable.
13. Under these circumstances, this Court is of considered opinion that
since civil suit filed by plaintiff itself was not maintainable, therefore, it is
not necessary to adjudicate the substantial questions of law which has been
framed by this court.
14. Accordingly, judgement and degree dated 03.08.2006 passed by
VII Additional District Judge, Gwalior in RCA No.3A/2004 as well as
judgement and degree dated 08.08.2005 passed by VIII Civil Judge, Class 1,
Gwalior in Civil Suit No.8A/2003 are hereby affirmed.
15. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Rashid
