VASANTHAKUMARI Vs. GEORGE SELVARAJ
HIGH COURT OF KERALA
Click here to view full judgement.
(1.) In this case the execution court rejected the claim petition under O.21, R.102. As per R.102 the order passed deemed to be a decree for the purpose of appeal. The petitioner preferred an appeal and the appellate court confirmed the order, against which the present Civil Revision Petition is filed.
(2.) O.21, R.103 is similarly worded as is in O.21, R.58(3) of the C.P.C. Interpreting the said provision the Division Bench of this Court in Anto Mamkoottam v. Peruvanthanam Service Cooperative Bank ( 1996 (2) KLT 962 ) held that a further second appeal will lie against the order passed under O.21, R.58(4), even though there is no specific reference to further appeal incorporated in that section. The same view was taken in Ghasi Sahu and Another v. Himachal Sahu & Anr. (AIR 1986 Orissa 170) and Mohammed Jameel Ahmed Ansari v. Ishrath Sajeeda and Others (AIR 1983 AP 106). The Apex Court in Ram Prasad Rajak v. Nand Kumar and Bros. & Anr. ( AIR 1998 SC 2730 ) considered a similar question arising under the Bihar Buildings (Lease, Rent and Eviction) Control Act (4 of 1983). In para 6 of the judgment it is held as follows:
We have noticed that the respondents filed a Revision under S.14(8) of the Act against the judgment of the appellate court granting a decree for eviction in favour of the appellant. Obviously that revision was not maintainable as there is no provision in S.14(8) of the Act for a revision against an appellate order. The said sub-section refers only to an order passed by the Trial Court for recovery of possession in favour of the landlord. If the Trial Court dismisses the suit, the only remedy of the landlord is to file an appeal under S.96, C.P.C. When such an appeal is disposed of by the appellate court, the further remedy of the aggrieved party is only under S.100, C.P.C. and there is no question of reverting back to S.14(8) of the Act. By no stretch of imagination, the appellate order or decree can be considered to be an order of the Trial Court for recovery of possession within the meaning of S.14(8) of the Act. Hence the Revision Petition filed by the respondents before the High Court was not maintainable.
(3.) The principle is that once it is deemed to be a decree it will not revert back after the appeal. Once it is deemed to be decree as contemplated under O.21, R.103 then after the appellate order it will not revert back and it will continue to be a deemed decree and therefore appealable. In the above circumstances, the defect noticed is sustained.
The petitioner shall take necessary steps to cure the defect. As such I hold that the Civil Revision Petition is not maintainable;
Copyright © Regent Computronics Pvt.Ltd.