Case Note & Summary
The appellant, an obstructionist, challenged a judgment and order dated 7 December 2009 passed by the City Civil Court, Mumbai, which made absolute a Chamber Summons under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (CPC) filed by the first respondent (original plaintiff). The first respondent had obtained a decree for possession under Section 6(1) of the Specific Relief Act, 1963 against the second to fourth respondents. During execution, the appellant and two others obstructed, prompting the Chamber Summons. The trial court allowed the Chamber Summons, and the appellant appealed under Order XXI Rule 103 CPC. The first respondent raised a preliminary objection that the appeal was not maintainable because Section 6(3) of the Specific Relief Act bars any appeal against a decree passed in a suit under Section 6(1), and this bar extends to execution orders. The appellant argued that the scheme of Order XXI Rules 97-103 CPC treats the adjudication under Rule 97 as a decree, and an appeal lies under Rule 103. The court analyzed the language of Section 6(3), which states that no appeal lies from any order or decree passed in a suit under Section 6(1). The court held that this bar applies only to the suit itself and not to execution proceedings, which are separate and governed by the CPC. The court noted that the order under Rule 97 is not an order or decree in the suit but an order in execution, and Rule 103 expressly provides for an appeal. The court distinguished the Calcutta and Nagpur High Court decisions cited by the respondent, as they dealt with appeals against the suit decree itself. The court also relied on the Supreme Court decision in N.S.S. Narayana Sarma v. Goldstone Exports, which held that adjudication under Rule 97/99 is a decree. Consequently, the court overruled the preliminary objection and held the appeal maintainable. The matter was then directed to be listed for hearing on merits.
Headnote
A) Civil Procedure - Execution Proceedings - Appeal under Order XXI Rule 103 CPC - Maintainability - The bar under Section 6(3) of the Specific Relief Act, 1963 applies only to appeals against decrees passed in suits under Section 6(1) and does not extend to orders passed in execution proceedings under Order XXI CPC - Held that an appeal under Order XXI Rule 103 CPC is maintainable against an order under Rule 97 CPC in execution of a Section 6 decree (Paras 1-6).
Issue of Consideration
Whether an appeal under Order XXI Rule 103 of the Code of Civil Procedure, 1908 is maintainable against an order passed on a Chamber Summons under Order XXI Rule 97 CPC in execution of a decree passed in a suit under Section 6(1) of the Specific Relief Act, 1963, given the bar under Section 6(3) of that Act.
Final Decision
The preliminary objection regarding maintainability of the appeal was overruled. The court held that the appeal under Order XXI Rule 103 CPC is maintainable. The matter was directed to be listed for hearing on merits.
Law Points
- Appeal maintainability
- Order XXI Rules 97-103 CPC
- Section 6 Specific Relief Act
- 1963
- bar on appeal limited to suit decree
- execution proceedings not covered
Case Details
2011 LawText (BOM) (09) 72
First Appeal No.32 of 2010
Shri V.S. Kapse for the Appellant, Shri R.S. Apte, Senior Counsel i/by Shri Mandar Limaye and Shri Shreekant V. Gavand for Respondent No.1
Mr. Raghunath R. Shingate
Jayant Gajanan Pathak and Others
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Nature of Litigation
Appeal against an order passed on a Chamber Summons under Order XXI Rule 97 of the Code of Civil Procedure, 1908 in execution of a decree under Section 6(1) of the Specific Relief Act, 1963.
Remedy Sought
The appellant (obstructionist) sought to challenge the order making absolute the Chamber Summons for removal of obstruction.
Filing Reason
The appellant obstructed execution of a decree for possession passed under Section 6(1) of the Specific Relief Act, 1963.
Previous Decisions
The City Civil Court, Mumbai, by judgment and order dated 7 December 2009, made absolute the Chamber Summons under Order XXI Rule 97 CPC.
Issues
Whether an appeal under Order XXI Rule 103 CPC is maintainable against an order passed under Order XXI Rule 97 CPC in execution of a decree under Section 6(1) of the Specific Relief Act, 1963, in view of the bar under Section 6(3) of that Act.
Submissions/Arguments
Respondent No.1 argued that Section 6(3) of the Specific Relief Act bars any appeal against any order or decree passed in a suit under Section 6(1), and this bar extends to execution orders. Reliance placed on Kanai Lal Ghose v. Jatindra Nath Chandra and Zakarali v. Israr Hussain.
Appellant argued that the scheme of Order XXI Rules 97-103 CPC treats the adjudication under Rule 97 as a decree, and Rule 103 expressly provides for an appeal. Reliance placed on Kishan Ranchhoddas v. Lalji Dharamdas Kapadia and N.S.S. Narayana Sarma v. Goldstone Exports.
Ratio Decidendi
The bar under Section 6(3) of the Specific Relief Act, 1963 applies only to appeals against decrees or orders passed in a suit under Section 6(1) and does not extend to orders passed in execution proceedings under Order XXI of the Code of Civil Procedure, 1908. An order under Order XXI Rule 97 CPC is an order in execution, not a decree in the suit, and an appeal lies under Order XXI Rule 103 CPC.
Judgment Excerpts
The bar under sub-section (3) of Section 6 of the said Act is only in respect of an appeal against an order or a decree passed in a suit under sub-section (1) of Section 6 of the said Act. The order passed on the Chamber Summons under Rule 97 of Order XXI of the said Code is not an order or a decree passed in the suit.
The scheme of Order XXI of the said Code contemplates that even the rights of the third parties are required to be finally determined while making an adjudication on an application under Rule 97 of Order XXI of the said Code and the Rule 103 thereof confers status of a decree on the order passed on adjudication made under Rule 97 of Order XXI of the said Code.
Procedural History
The first respondent filed a suit under Section 6(1) of the Specific Relief Act, 1963 for possession against the second to fourth respondents. The suit was decreed. During execution, the appellant and two others obstructed. The first respondent took out a Chamber Summons under Order XXI Rule 97 CPC. The City Civil Court, Mumbai, by judgment and order dated 7 December 2009, made the Chamber Summons absolute. The appellant filed the present appeal under Order XXI Rule 103 CPC. The first respondent raised a preliminary objection as to maintainability. The High Court heard the preliminary objection and overruled it by the present judgment.
Acts & Sections
- Specific Relief Act, 1963: Section 6(1), Section 6(3)
- Code of Civil Procedure, 1908: Order XXI Rules 97, 99, 103
