Case Note & Summary
The present second appeal is filed by the appellant, original plaintiff, aggrieved by the judgment and decree passed by the learned District Judge-9 at Nagpur in First Appeal No.97/2011 arising out of order dated 01/01/2011 in R.D. No.6/2002 against the order of rejection of the objection under Section 47 of the Civil Procedure Code. The appellant had filed a suit for specific performance of contract against the original defendants Madan s/o Ganpatrao Wakde and his mother Mainabai. The suit was decreed, and a sale deed was executed pursuant to the decree. Thereafter, the appellant filed an application under Section 47 CPC objecting to the execution of the decree for possession, which was rejected by the executing court. The appellant then filed a Regular Civil Appeal before the District Judge, who dismissed the appeal as not maintainable, holding that only a revision under Section 115 CPC lies. The appellant then filed the present second appeal. The High Court framed two substantial questions of law: (i) Whether the Regular Civil Appeal is maintainable challenging the rejection of objection under Section 47 CPC or it is only a revision under Section 115 CPC; (ii) Whether the lower Appellate Court was right in passing a decree for separate possession of the property particularly when the sale deed has already been executed pursuant to decree passed in suit for specific performance of contract. The Court held that an order under Section 47 CPC is a decree and therefore appealable under Section 96 CPC, and the lower Appellate Court erred in holding otherwise. On the second issue, the Court held that once a sale deed is executed pursuant to a decree for specific performance, the property stands transferred and the executing court cannot pass a decree for separate possession. The appeal was allowed, the impugned judgment was set aside, and the matter was remanded to the lower Appellate Court for decision on merits.
Headnote
A) Civil Procedure - Maintainability of Appeal - Section 47, 96, 115 CPC - Order rejecting objection under Section 47 CPC is a decree and appealable under Section 96 CPC, not revisable under Section 115 CPC - Held that the lower Appellate Court erred in treating the appeal as not maintainable (Paras 3, 10-15). B) Specific Performance - Execution of Decree - Separate Possession - After sale deed executed pursuant to decree for specific performance, the executing court cannot pass a decree for separate possession as the property already stands transferred - Held that the lower Appellate Court's decree for separate possession was without jurisdiction (Paras 3, 16-20).
Issue of Consideration
Whether a Regular Civil Appeal is maintainable against rejection of objection under Section 47 CPC or only a revision under Section 115 CPC; Whether the lower Appellate Court was right in passing a decree for separate possession when sale deed had already been executed pursuant to decree for specific performance.
Final Decision
The High Court allowed the second appeal, set aside the impugned judgment and decree of the lower Appellate Court, and remanded the matter to the lower Appellate Court for decision on merits in accordance with law.
Law Points
- Section 47 CPC order is a decree
- appealable under Section 96 CPC
- not revisable under Section 115 CPC
- Execution of decree for specific performance
- Separate possession after sale deed executed
