Case Note & Summary
The case pertains to an Execution Second Appeal filed by B. Kashinath Choudhary against an order dated 11.03.2013 passed by the Principal Civil Judge (Jr. Dn.) and JMFC, Sagar, in Execution Case No.45/2011. The execution petition was filed under Order 21 Rule 11 of the Code of Civil Procedure, 1908 (CPC) by the decree holders (respondents 1-5). The appellant, who was the legal representative of the judgment debtor, challenged the order allowing the execution petition. The appeal was initially filed as a Writ Petition (No.4967/2015) but was later converted into an Execution Second Appeal under Section 100 CPC read with Chapter VI-A of the Karnataka High Court Rules, 1959. The Registry raised an objection questioning the maintainability of the Execution Second Appeal against an order under Order 21 Rule 11 CPC. The appellant's counsel argued that the appeal was maintainable. The court, after hearing the counsel, examined the nature of the order. It noted that an order under Order 21 Rule 11 CPC is merely an order for issuance of notice or for proceeding with execution and does not amount to a 'decree' as defined under Section 2(2) CPC. Therefore, no second appeal lies against such an order. The court dismissed the Execution Second Appeal as not maintainable, upholding the Registry's objection.
Headnote
A) Civil Procedure - Execution Second Appeal - Maintainability - Order 21 Rule 11 CPC - Section 100 CPC - The court considered whether an Execution Second Appeal lies against an order passed under Order 21 Rule 11 CPC in execution proceedings. The appellant had filed the appeal against an order dated 11.03.2013 in Execution Case No.45/2011. The Registry raised an objection regarding maintainability. The court held that an Execution Second Appeal is not maintainable against such an order, as it does not amount to a 'decree' under Section 2(2) CPC. The appeal was dismissed as not maintainable. (Paras 2-4)
Issue of Consideration
Whether an Execution Second Appeal under Section 100 CPC read with Chapter VI-A of Karnataka High Court Rules, 1959 is maintainable against an order passed under Order 21 Rule 11 of CPC in an execution petition.
Final Decision
The Execution Second Appeal is dismissed as not maintainable.
Law Points
- Maintainability of Execution Second Appeal
- Order 21 Rule 11 CPC
- Section 100 CPC
- Karnataka High Court Rules 1959
Case Details
2015 LawText (KAR) (04) 125
Execution Second Appeal No.2/2015
Sri. Anant V. Albal (for appellant), Sri. Harish Kumar M.S. (for respondents 1-5)
Smt. Savithramma and others
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Nature of Litigation
Execution Second Appeal against an order allowing execution petition under Order 21 Rule 11 CPC.
Remedy Sought
The appellant sought to challenge the order dated 11.03.2013 in Execution Case No.45/2011 allowing the execution petition.
Filing Reason
The appellant, as legal representative of the judgment debtor, was aggrieved by the order allowing execution.
Previous Decisions
The Principal Civil Judge (Jr. Dn.) and JMFC, Sagar, allowed the execution petition filed by the decree holders in Execution Case No.45/2011 on 11.03.2013.
Issues
Whether an Execution Second Appeal under Section 100 CPC is maintainable against an order passed under Order 21 Rule 11 CPC.
Submissions/Arguments
The appellant's counsel argued that the appeal was maintainable.
The Registry objected that the appeal was not maintainable against an order under Order 21 Rule 11 CPC.
Ratio Decidendi
An order under Order 21 Rule 11 CPC is not a decree under Section 2(2) CPC, and therefore no second appeal lies under Section 100 CPC against such an order.
Judgment Excerpts
Registry has raised following objection: '(1) How Ex.SA is maintainable against an order dt: 11/3/13 passed by Prl. C.J. and JMFC at Sagar in Ex 45/11 filed U/O 21 rule 11 of CPC to be clarified.'
In reply to said objections, learned counsel appearing for appellant has endorsed to the following effect: 'Originally the matter was filed as Writ Petition I No.4967/2015 (GM-CPC) and was posted before CH-19 – Hon’ble Justice Sri.L.Narayan Swamy.'
Procedural History
The execution petition (Ex. 45/2011) was filed by the decree holders under Order 21 Rule 11 CPC before the Principal Civil Judge (Jr. Dn.) and JMFC, Sagar, which was allowed on 11.03.2013. The appellant initially filed a Writ Petition (No.4967/2015) which was later converted into an Execution Second Appeal (No.2/2015) under Section 100 CPC read with Chapter VI-A of Karnataka High Court Rules, 1959. The Registry raised an objection regarding maintainability, and the matter was heard by the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100, Order 21 Rule 11
- Karnataka High Court Rules, 1959: Chapter VI-A, Rule 2(b)
