GANGADHAR CHOUDHURY Vs. SYED SAJID ALI

JUDGEMENT

(1.) THE judgment-debtor In Execution Case No. 25/72 has preferred this appeal against the decision dated 29-7-1972 of the Subordinate Judge Cuttack passed in miscellaneous Appeal No. 44/72 confirming the decision dated 10-5-1972 of the first Munsif. Cuttack, in Execution Case No. 25/72.

(2.) THE decree-holder filed the above-mentioned execution case to execute an order passed in House Rent Control Case No, 54/68. Notice under Order 21, Rule 22. Civil P. C. was issued to the judgment-debtor (appellant herein) which was received back on 12-4-1972 after personal service on the judgment-debtor. On that date the appellant-judgment-debtor did not appear in Court The decree- holder filed a petition for police help on that date. That petition was allowed and a letter was issued to the Superintendent of Police. Cuttack in that connection and the case was fixed to 8-5-1972 expecting in the meantime a reply from the superintendent of Police to the above effect. In the meantime, on 25-4-1972, reply from the Superintendant of Police in the affirmative was received and the court ordered that reply to be put up on 8-5-1972, i. e. on the next date fixed for the case. Before that date the decree-holder on 5-5-1972 filed requisites for issue of the writ of delivery of possession praying therein to advance the date of execution to that date. He also prayed by another petition that the bailiff be authorised to break open the lock on the house, if necessary, at the time of the execution of the writ of delivery of possession. On that day (5-5-1972) the judgment-debtor appeared in Court and filed a petition for time enabling him to file his objection to the execution of the decree. The Court ordered the above matters to be called on 8-5-1972 and permitted the judgment-debtor to file his objection in the meantime. On 8-5-1972 the judgment-debtor filed his objection petition and also a petition to stay delivery of possession till the disposal of his objection petition. The learned Munsif heard the matter on that day and by his order dated 10-5-1972 he dismissed the objection petition of the judgment-debtor on the ground that the said objection was barred by the principles of constructive res judicata. The aforesaid order of the Munsif has been confirmed by the impugned order of the appellate Court and hence this appeal by the judgment-debtor.

(3.) A preliminary objection challenging the maintainability of this appeal has been raised by Mr. Mohanty, the learned counsel for the respondent, on the ground that the order passed by the executing Court on 10-5-1972 is not a decree under section 2 (2) of the Civil P. C. and the said order does not come under Order 43. Civil P. C. , and accordingly the first appeal in the Court below was not maintainable and consequently this Miscellaneous Appeal does not lie. Mr. Dasgupta, the learned counsel for the appellant, very seriously contends that the order passed by the learned Munsif on 10-5-1972 amounts to a decree and so the first appeal in the Court below was and this Miscellaneous Appeal in this Court is maintainable in law.