AMITAV K.GUPTA, J. - (1.) This second appeal has been preferred against the judgment passed by the District Judge-1st, Chatra in Misc. (Civil) Appeal no. 07 of 2005, dismissing the appeal preferred by the appellant.
(2.) Mr. Ayush Aditya, learned counsel for the appellant has laid out the sequence of events culminating in preferring this Second Appeal. It is submitted that Execution Case no.1 of 2005 was instituted by the respondents/plaintiffs and the appellant (herein) had filed the objection petition under Order 21, Rule 97 C.P.C., to which a rejoinder was filed by the respondents/plaintiffs. The objection filed by the appellant was rejected by the Executing Court, whereupon, the appellant had preferred Miscellaneous Appeal before the District Judge who vide order dated 04.01.2006 had directed to return the memo of appeal observing that the order passed by the Executing Court was revisable and not appealable. Against the order of the District Judge, the appellant had preferred Second Appeal no. 12 of 2006 and this Court while setting aside the order of the District Judge held that the order passed under Order 21, Rule 97 was a decree in terms of Rule 103 CPC and was appealable under section 96 CPC and accordingly, the District Judge was directed to hear the appeal and pass necessary orders afresh, in accordance with law.
(3.) Mr. Ayush Aditya has eloquently argued that perusal of the judgment would ex-facie disclose that the court below while passing the order has not adhered to the requirement of provisions of section 96 CPC. In support of his contention he has relied on the decision reported in (2017) 2 Supreme Court Cases 415 in the case of Laliteshwar Prasad Singh and Others v. S.P. Srivastava (Dead) Through Legal Representatives and submitted that the Supreme Court has held that the first appellate court is bound to state the points for determination and the reasons for the decisions. It is urged that the order impugned herein, reveals that no independent findings has been recorded by the learned District Judge, rather he has merely reiterated the findings of the Executing Court. That in fact, the order has been passed without assigning any reasons or independent application of judicial mind. It is contended that this itself gives rise to a substantial question of law. Learned counsel has also referred to the decision in the case of Santosh Hazari v. Purushottam Tiwari (Deceased) by Lrs. reported in (2001) 3 Supreme Court Cases 179, and submitted that in the said decision it has been held that improper functioning of first appellate court may give rise to substantial question of law as the judgment of the first appellate court must reflect conscious application of mind and the findings should be supported by reasons on all issues and contentions. Learned counsel has also relied on the decisions reported in (2014) 16 Supreme Court Cases: (2015) 3 Supreme court Cases (civ) 453 and in the case of United Engineers and Contractors v. Secretary to Government of A.P. and Others wherein it has been held that there should be full-fledged inquiry and the issue should be framed by the trial court and merely dismissal of the case is improper. It is argued that in similar circumstances, the Supreme Court had remitted the matter to the first appellate court to frame issues and decide it in terms of Order 41, Rule 31 C.P.C. Learned counsel has relied on the decision in the case of A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam by its president and others reported in (2012) 6 Supreme Court Cases 430 and submitted that the courts are bound to frame issues on the basis of the pleadings of the parties as laid down under Order 14, Rule 1 and 3 and Order 10, Rule 2 C.P.C. Learned counsel has also relied on the decision reported in (2009) 2 Supreme Court Cases 562 in the case of S. Satnam Singh and Others v. Surender Kaur and Another and submitted that the impugned judgment does not come within the definition of decree as defined under Section 2 of the Code. Learned counsel has also relied on the decision in the case of Baljit Singh v. Balkar Singh reported in (2001) 2 PLR 315; (2001) 1 RCR (Civ) 180; (2000) 0 Supreme (P and H) 849 and in the case of S.K. Mukherjee, Basudeva Panigrahi v. Calcutta Vyapar Pratisthan Ltd., reported in (1995) 1 CalLT 427; 1995 1 CLJ 434; (1995) 0 Supreme (Cal) 99 and contended that Order 21 CPC has been incorporated by amendment of Rule 1976 with an object to curtail multiplicity of suit. It is argued that the Executing Court is competent to decide the issues on the applications filed under Order 21, Rule 97 CPC by adjudicating on the issues and contentions and pleas raised even by a stranger who resists the execution of decree by the decree holder. ;