First Appeal No.32 of 2010

27th September, 2011

Petitioner Counsel: Shri V.S. Kapse
Respondent Counsel: Shri R.S. Apte,Shri Mandar Limaye , Shri Shreekant V. Gavand

Cases Cited:
Kanai Lal Ghose Vs. Jatindra Nath Chandra, AIR 1918 Calcutta 925 [Para 2,6]
Zakarali Vs. Israr Hussain and Another, AIR (34) 1947 Nagpur 53 [Para 2]
Kishan Ranchhoddas and Another Vs. Lalji Dharamdas Kapadia and Other, 1982 Mh.L.J. 216 [Para 3]
N.S.S. Narayana Sarma & Others Vs. M/s. Goldstone Exports (P) Ltd. And Others, 2002(1) ALL MR 634 (S.C.)=AIR 2002 SC 251 [Para 3]
Narayan Parmanand Vs. Nagindas Bhaidas, (1906)30 Bom. 113 [Para 6]
Satguru Construction Co. Pvt. Ltd Vs. Greater Bombay Co-operative Bank Ltd., 2007(5) ALL MR 628=(2007) 3 Mah.L.J. 843 [Para 6]

JUDGMENT

JUDGMENT :- This is an Appeal preferred by one of the Obstructionists for challenging the Judgment and Order dated 7th December, 2009 passed by the learned Judge of the City Civil Court, Mumbai. The first Respondent is the original Plaintiff. It is not in dispute that the first Respondent filed a suit under Section 6(1) of the Specific Reliefs Act, 1963 (hereinafter referred to as "the said Act") for possession of the suit premises against the second to fourth Respondents. The suit was decreed. The execution of the Decree was obstructed by the Appellant and two others. Therefore, a Chamber Summons was taken out by the first Respondent by invoking Rule 97 of Order XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). By the impugned Judgment and Order, the said Chamber Summons has been made absolute. The Appellant has preferred this Appeal by relying upon Rule 103 of Order XXI of the said Code.

2. Learned Senior Counsel appearing for the first Respondent raised an objection to the maintainability of the present Appeal. His submission is that in view of Subsection (3) of Section 6 of the said Act, an Appeal against the Decree passed in a suit under Section 6(1) of the said Act is not maintainable. His submission is that in fact an Appeal is not maintainable against any order or a decree passed in a suit under Section 6(1) of the said Act. His submission is that as an Appeal is not maintainable against the decree passed in the suit, an Appeal will not lie against the order passed in execution of the decree passed in a suit under Section 6(1) of the said Act. He placed reliance on a decision of the Calcutta High Court in the case of Kanai Lal Ghose v. Jatindra Nath Chandra (AIR 1918 Calcutta 925). He has also placed reliance on a decision of Nagpur High Court in the case of Zakarali v. Israr Hussain and Another (AIR (34) 1947 Nagpur 53).

3. Learned counsel appearing for the Appellant invited the attention of the Court to the Rules 97 to 103 of Order XXI of the said Code. He submitted that the scheme of the said Code contemplates that even the rights of the third parties are required to be finally determined while making an adjudication on an application under Rule 97 of Order XXI of the said Code and the Rule 103 thereof confers status of a decree on the order passed on adjudication made under Rule 97 of Order XXI of the said Code. He placed reliance on a decision of this Court in the case of Kishan Ranchhoddas and Another v. Lalji Dharamdas Kapadia and Other (1982 Mh.L.J. 216). He placed reliance on a decision of the Apex Court in the case of N.S.S. Narayana Sarma & Others v. M/s. Goldstone Exports (P) Ltd. And Others (AIR 2002 SC 251) : [2002(1) ALL MR 634 (S.C.)]. He submitted that the Apex Court has held that the adjudication made under Rule 97 or Rule 99 of Order XXI of the said Code has to be treated as a decree as all the questions arising between the obstructionist and the decree holder are required to be decided in the proceedings for removal of obstruction and not by way of a separate suit.

4. I have given careful consideration to the submissions. The only issue which arises for determination is of maintainability of the Appeal. In short, the issue is whether the bar created by Subsection (3) of Section 6 of the said Act will apply to the present Appeal.

5. Section 6 of the said Act reads thus:

"6. Suit by person dispossessed of immovable property.

(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."

6. The legislature has made available a quick and effective remedy for restoration of possession to a Plaintiff who has been dispossessed without due process of law. Such a suit is maintainable provided it is filed within a period of six months from the date of dispossession. The decree passed in such a suit does not prevent the parties to the suit from filing a separate suit for establishing their title. Thus, notwithstanding the decree for possession passed in a suit under Section 6(1) of the said Act, the unsuccessful Defendant can maintain a suit for establishing his title. Perhaps, in view of the maintainability of a fresh suit by the parties, the legislature has completely barred an Appeal against the decree or order passed in a suit under Section 6(1) of the said Act. In the case of Kanai Lal Ghose (supra), the Division Bench of the Calcutta High Court has considered the provision of Section 9 of the Specific Relief Act, 1877 which was pari materia with Section 6 of the said Act. The Calcutta High Court took the view that the term "suit" includes execution proceedings on the basis of the decree in the suit. Hence, it was held that an appeal against an order passed in execution of decree passed in such a suit under Section 9 of the said Act of 1877 will not lie. The Division Bench of the Calcutta High Court relied upon a decision of this Court in the case of Narayan Parmanand v. Nagindas Bhaidas [(1906)30 Bom. 113]. The said decision dealt with a Second Appeal arising out of the orders passed in execution of a decree passed in a suit cognizable by the Court of Small Causes. A preliminary objection was raised on the ground that as a Second Appeal is not maintainable against a decree passed in a suit cognizable by the Court of Small Causes, a Second Appeal will not lie against an order passed in execution of such a decree. While dealing with the said objection, the Division Bench held thus:

"JENKINS, C.J.:- This is an appeal arising out of an application in execution of a decree. That decree was passed in a suit of the nature cognizable in the Court of Small Causes, and it has been established by a number of reported decisions of which, so far as we are aware, Shyama Charan Mitter v. Debendra Nath Mukerjee(1) is the last, that no Second Appeal lies. Though there is not reported case of this Court on the point, we think we ought to follow these decisions. We must accordingly give effect to the preliminary objection and dismiss this appeal with costs".

Thus, this Court held that if against the decree passed in the suit, a Second Appeal is barred, a Second Appeal against an order passed in execution of such decree is not maintainable. In the case of Satguru Construction Co.Pvt. Ltd Vs Greater Bombay Co-operative Bank Ltd [(2007) 3 Mah.L.J. 843] : [2007(5) ALL MR 628], a Division Bench of this Court held that "It is settled law that execution proceeding is a continuation of a suit."

7. Rule 103 of Order XXI of the said Code reads thus:

"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."

8. There is no difficulty in accepting the proposition that wherever an Appeal against a decree passed in a suit is maintainable, by virtue of Rule 103 of Order XXI of the said Code, the order passed by the Court on the adjudication made on application under Rule 97 of Order XXI of the said Code will have a force of the decree for the purposes of an appeal and, therefore, such order will be appealable under Section 96 of the said Code as if it is a decree. Rule 103 of Order XXI of the said Code uses a peculiar phraseology "as to an Appeal or otherwise as if it were a decree". As held earlier, an execution proceeding is a continuation of a suit. Rule 103 confers status of a decree on adjudication made under Rule 98 or Rule 100 of Order XXI of the said Code so that it is subject to same condition as to an Appeal or otherwise. The execution is a continuation of a suit. Therefore, an Appeal against a decree or order passed in execution of a decree in a suit under Section 6(1) will be barred by Sub-section (3) of Section 6 of the said Act. Therefore, if an Appeal is not maintainable against the decree passed in the suit, it follows that an order passed in execution of a decree to which Rule 103 of Order XXI of the said Code is applicable will not be subject to any appeal. The decisions relied upon by the Appellant do not deal with a case where an appeal against a decree passed in the suit is expressly barred under the statute.

9. If the interpretation sought to be put by the Appellant is accepted, it will lead to an incongruous result which will defeat the intention of the legislature. The intention of the legislature is to provide quick and effective remedy under Section 6(1) of the said Act in case of a forcible dispossession and, therefore, there is no appeal provided against the decree. If submission of the learned counsel appearing for the Appellant is accepted, the result will be that there is no Appeal available against the decree passed in the suit but an Appeal will be available against an order passed in the proceeding for removal of obstruction in execution of the decree. If interpretation sought to be made by the Appellant is accepted, in case of execution of a decree for possession passed in a suit under Section 6(1) which is decided by a Court of Civil Judge (Junior Division), against an order passed on an application for removal of obstruction, even a Second Appeal will lie.

10. Therefore, the only conclusion is that an Appeal is not maintainable against the impugned Judgment and Order.

11. Hence, I pass the following order:

ORDER:

(i) The Appeal is dismissed as not maintainable. However, notwithstanding the dismissal of the Appeal, it will be open for the Appellant to adopt appropriate proceedings for challenging the impugned Judgment and Order.

(ii) To enable the Appellant to do so, the adinterim relief granted by this Court will continue to operate for a period of twelve weeks from today.

Appeal dismissed.