Bijitendra Mohan Mitra, J. - (1.)This is an application under 227 of the Constitution of India being directed against Order No. 3 dated 8.12.1994 passed by the learned District Judge at Howrah in Misc. Appeal No. 608 of 1994. The said Misc. Appeal arose out of the connected Misc. case under provisions of Order 21 Rules 100, 101, 102 and 104 read with section 47 of the Code of Civil Procedure. The learned District Judge by a speaking order has summarily dismissed the said misc. appeal. In the present proceeding under article 227 of the Constitution, an attempt has been raised by the learned Advocate, appearing on behalf of the petitioner, to contend that the connected misc. appeal does not lie as according to him, proper remedy available ought to have been by way of regular appeal and as such the question of admission of the same under Order 41 Rule 11 of the Code of Civil Procedure does not and cannot arise.
(2.)According to the submissions of the learned Advocate appearing on behalf of the petitioner, Order 21 Rule 103 of the Code of Civil Procedure indicates that any order passed under such Rule should be treated as a decree and accordingly, the same is appealable under section 96 of the Code of Civil Procedure as regular appeal. In support of the said contention Mr. Banerjee has referred to a decision reported in the AIR 1933 Cal 546 and a further reference was made to the case of Ganga Dutta Mxmakar Vs. Bibhabati Devi & Ors. reported in AIR 1957 Cal 65. In furtherence of the said submissions it has been contended that after the amendment of the Code of Civil Procedure in 1976 the High Court did not make any Rules incorporating in the Civil Rules and Orders that such appeals would be classified as Misc. Judicial Appeals and in absence of any amendment being introduced in parity with the amendment of the Civil Procedure Code, the same should be rated as decree. Sec. 128 of the Code of Civil Procedure controls the power of the High Court to make Rules consistent with the body of the Code of Civil Procedure. According to him, as the amendment of the Code of Civil Procedure is not reflected in Older 776(a) (11 and 12 of the Civil Rules and Orders) as such the same cannot but be treated as a regular decree. It is significant to mention at the very outset before dealing with the points raised by Mr. Banerjee that the impugned order starts with descriptive narration of the nature of the miscellaneous proceeding being compositely under Order 21 Rules 100. 101. 102 and 104 but Rule 103 seems to have been significantly left out. The entire argument of Mr. Banerjee is centred round Rule 103 of Order 21 of the Code of Civil Procedure but somehow the descriptive narration of the nature of the miscellaneous proceeding does not indicate that within the composite ambit of the said proceeding the same was also attempted to be brought within the coverage of Rule 103. It is not also out of context to make a reference that not only the misc. case has been started by the petitioner but misc. appeal has also been taken out by the petitioner and in the proceeding before this Court, the learned Advocate appearing on behalf of the petitioner appears to have put on a turncoat by contending that the remedy against the original order lies by way of an appeal but not by way of misc. appeal though the petitioner himself has initiated the proceeding by way of misc. appeal. The entire background of the controversy of the facts unmistakably indicates though it it not dilated over here that the petitioner is bent on procrastination of multiplicity of procedures under purported reference to process of law to keep the doomsday in abeyance. However, this court is hereby concerned with the question of scrutiny with regard to plea of technicalities as attempted to be raised by Mr. Banerjee.
(3.)The concept of "decree" is well-known in Code of Civil Procedure as it has been defined in section 2(2) of the same. It envisages presence of three essential conditions, namely (I) The adjudication must be given in a suit, (II) The suit must start with a plaint and result in a decree (111) The adjudication must be formal and final and must be given by a competent Court of Civil jurisdiction. A reference may be made for clarification of the controversy sought to be raised by the petitioner to Swrajmal Jain's case reported in 1980 Volume 2 Cal LJ page 161 wherein it has been held that appeals preferred against orders made under Rule 98 or Rule 100 of Order 21 of the Code of Civil Procedure are to be classified as appeals from orders and they are required to be heard and admitted under Order 41 Rule 11 of the Code of Civil Procedure. It has been further suggested in the aforesaid decision that the orders which can also be taken as orders in the nature of deemed decrees will be required to be registered as misc. appeals for which admission under Order 41 Rule 11 of the Code of Civil Procedure would be necessary. Their Lordships in the aforsaid decisions are not oblivious about the effect of the amendment of the Code of Civil Procedure and being conscious of the same it has been opined that under the present law such adjudications have been given in the force of a decree although the said orders do not satisfy all the requisite conditions specified in section 2(2) of the Code of Civil Procedure. The amendment introduced in the body of the Code of Civil Procedure has brought about some change with regard to proceedings arising out of execution namely those which are after the decree where a third party not claiming through the judgment debtor but asserting an independent right can ventilate his stand. The same may be adjudicated upon after reception of evidence in the like manner of a regular contested suit or proceeding and has been envisaged with a view to cut-short the process of multiplicity of proceedings after passing of the decree at the stage of execution. Though the adjudication in the relevant provisions starting from Rule 97 onwards upto Rule 104 of Order 21 have been given the force of a decree but nevertheless they cannot be rated as decrees per se in terms of definition of section 2(2) of the Code of Civil Procedure. Rule 103 of Order 21 provides for appeal to dispel the possibility of any confusion in between the same and Rules 104 and 105 of the Code which prohibit appeals against the said order. The aforesaid judgment as referred to above being a Division Bench judgment appears to be binding on the Single Bench and the Single Bench is required to follow the same and does not find any possible logic to detract from the same. The argument of Mr. Banerjee about inconsistency or repugnancy of the amendment of the Code of Civil Procedure and Civil Rules and Orders may be a question for which the competence of the Forum of relief and its consequent effect and vires thereto may be challenged in a separate proceeding but not in a proceeding under Art. 227 of the Constitution of India. It is needless to mention that Art. 227 of the Constitution of India confers upon the High Court only to a restricted jurisdiction and it is required to only supervise on subordinate Courts or Tribunals functioning within its limit and control if any irregularity or error creeps in the order as a result of which it has travelled beyond the limit of its jurisdiction and it is required to be kept within the limit of the same. Any error in law even assuming to be there cannot be corrected in exercise of Art. 227 of the Constitution of India as it is neither coextensive nor complementary to section 115 of the Code of Civil Procedure but it is of independent and distinctive nature. Accordingly, this Court finds no justification to salvage the multiple questions of technicalities bordering on legal niceties in exercise of its jurisdiction of super independence. Accordingly, the present revisional application fails and it stands dismissed. There shall, however, be no order as to costs. Revision application dismissed.
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