RADHA RANI DAS Vs. BHOLANATH MAZUMDAR

JUDGEMENT

(1.) Heard the learned counsel for the petitioners Mr. O. Laskar as well as Mr. Dilip Mazumdar, learned Senior Advocate assisted by Mr. G. Dutta, learned counsel for the respondent.

(2.) By way of this petition under Art. 227 of the Constitution, the petitioners have challenged the Order dtd. 26/8/2019 which have been passed in a proceedings under Order XXI Rule 97 and 101 of the CPC. I am not going into the merits of the case in view of the fact that it may affect the case of both the parties before the courts below. Be that as it may, the provisions of Order XXI Rule 103 clearly stipulate that an order passed under Order XXI Rule 100 in reference to questions arising out of Order XXI Rule 97, 99 and 101 is a decree as such an order shall have the same force and be subject to the same conditions as to an appeal or otherwise, as if it were a decree. This aspect of the matter is no longer res integra and as such an appeal lies against an order passed under Order XXI Rule 100 of the CPC. Consequently in view of the above, the instant proceedings initiated under Art. 227 of the Constitution of India is not maintainable. The judgment of the Supreme Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others v. Tuticorin Educational Society and Others, 2019) 9 SCC 538 clearly mandates that in a matter wherein an alternative remedy is provided under the provisions of the Code of Civil Procedure it acts as a total bar to the exercise of jurisdiction under Art. 227 of the Constitution. In this regard the paragraph 12 of the said judgment is quoted herein below:

(3.) In view of the above as an appeal lies against the order passed under Order XXI Rule 100, I am not inclined to exercise the jurisdiction under Art. 227 of the Constitution of India.