Judgment:
ORDER
Hari Nath Tilhari, J.
1. This Revision under Section 115 of the Code of Civil Procedure arises from the judgment and order dated 9th August, 1995 dismissing the Revisionist's - appellant - judgment debtor's R.A. No. 101/1995, on the ground that the appeal preferred was misconceived and not maintainable as the appeal was against the Commissioner's Report.
2. I have heard the learned Counsel for the Revisionist. Sri Goulay, learned Counsel for the Revisionist urged before me that the order impugned suffers from jurisdictional error; that the Court below erred in holding that the appeal was misconceived and not maintainable, thereby the Court below refused to exercise the jurisdiction invested. Further, Sri Goulay submitted that the appeal was maintainable under Order 43 Rule 1 (i), and it is an appeal from the order and not an appeal from the decree. Sri Goulay invited my attention to the provisions of Order 21 Rule 34 of the Code of Civil Procedure and Order 43 Rule 1 (i) read with Section 104 of the Code of Civil Procedure, for short, 'Code'.
3. I have examined the contention of Mr. Goulay. The facts of the case in brief are that Original Suit O.S.No. 53/1976 was filed by respondents 1 (A) and (B) in the Court of Munsiff, Bijapur for specific performance of contract to execute the sale deed and for possession of property bearing No. CTS 124/A of Ward No. VI, Bijapur.
4. The aforesaid suit was decreed by the Trial Court for the reliefs claimed in the plaint and a Regular Appeal was filed from the decree of the Trial Court by the Revisionist, who was appellant before the Court of the Regular Appeal and defendant in O.S.No. 53/1976. The Regular Appeal had later on been withdrawn by the present Revisionist and was dismissed as withdrawn, the decree for specific performance of contract i.e., for the reliefs claimed in the plaint thus became final. Thereafter, the respondents 1(A) and (B) who were plaintiffs in O.S. No. 53/1976 moved the application for execution of the decree by the execution of sale deed.
5. It appears from the Commissioner's Report that the draft of the sale deed was approved and verified by the Court and was handed over to the Court Commissioner with the warrant of appointment to execute the sale deed on behalf of the Court. Then, the Court Commissioner took the approved draft of the sale deed and got the same as sale deed executed and registered in favour of the decree holder in accordance with the terms of the decree and submitted his Report on 29.10.1994. The Trial Court thereafter, appears to have accepted the Report of the Commissioner. On the Report having been accepted, an appeal had been filed by the Revisionist -Judgment/debtor, from the order passed in Execution Case No. 131/89 dated 29.10.1994, as well as against the Commissioner's report dated 29.10.1994.
6. The learned Civil Judge called upon the Counsel of appellant i.e., Revisionist, who had filed the appeal in the Court below to point out and to satisfy as to under what provision of law, the said appeal had been filed and was maintainable. That the learned Counsel appearing for the appellant before the lower appellate Court failed to point out any provision of law and as such, the lower appellate Court dismissed the appeal after having observed as under:
'The appellant Abdul Khader has challenged the above report of Court Commissioner by way of appeal. I think the present appeal of the appellant is misconceived and it is not maintainable in Law. There is no provision in the Civil Procedure Code to prefer any appeal against the report of Commissioner. The lower Court has not yet passed the final decree in the Execution Case. Therefore, preferring of appeal by the appellant stating that he being aggrieved by the final decree passed by the Principal Munsiff, Bijapur is misconceived and not at all maintainable when no final decree has been passed, by the lower Court, the question of challenging the same does not arise.'
7. The appellant in his grounds of appeal has clearly stated that he is preferring the appeal, being aggrieved by the Court Commissioner's Report dated 29.10.1994. Therefore, this kind of appeal is not maintainable in any provisions of Civil Procedure Code. The learned Counsel for appellant is not able to show to me, that an appeal can be preferred against the Commissioner's Report. Therefore, when there is no provision in the law to prefer appeal against the Report of Court Commissioner, such an appeal deserves to be dismissed as misconceived and not maintainable.
Thus, after having observed as above the lower appellate Court, rejected the appeal as not maintainable.
8. The learned Counsel for the Revisionist Sri R.U. Goulay invited my attention to Order 21 Rule 34 of the Code, which deals with decree for execution -of documents, or endorsement of negotiable instruments and reads as under -
Order 21 Rule 34(1) - Decree for execution of document, or endorsement of negotiable instrument - Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment- debtor neglects or refuses to obey the decree, the decree- holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.
(2) The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.
(3) Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit.
(4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp paper, it a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.
(5) The execution of a document of the endorsement of a negotiable instrument under this rule may be in the following form, namely
'C.D. Judge of the Court of
(or as the case may be), for A.B., in a suit by E.F. against A.B.'
and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same.
6(a) Where the registration of the document is required under any law for the time in force, the Court or such officer of the Court as may, be authorised in this behalf by the Court, shall cause the document to be registered in accordance with such law.
(b) Where the registration of the document is not so required, but the decree-holder desires it to be registered, the Court may make such order as it thinks fit.
(c) Where the Court makes any order for the registration of any document, it may make such order as it thinks fit as to the expenses of registration.'
9. A perusal of Order 21 Rule 34 makes it clear that in case, Judgment-debtor neglects or refuses to obey the decree to which Rule 34 applies, that is refuses to execute the document or the like, then, decree-holder may prepare the draft document or endorsement in accordance with the terms of the decree and deliver the same to the Court. Thereupon, the Court shall cause the draft to be served on the judgment-debtor together with the notice requiring him to file objections if any the judgment - debtor desires to take within the time which the execution/trial Court may fix. Clause (3) of Rule 34 further provides that when the judgment-debtor objects to the draft, he shall file written objections, then Court shall consider and make such order either approving or altering the draft, as it thinks fit. Once the Court has disposed of the objections under Clause (3) to Rule 34 of Order 21 of the Code and has either approved the draft or altered the draft, then, the decree-holder is required to prepare that draft along with the stamp paper and to deliver it to the Court by which itself or any officer appointed by the Court in that behalf shall execute the document so delivered. Clause (5) to Order 21 Rule 34 also indicate the Form. Clause (6) provides that where the document requires to be registered, the Court or such officer of the Court, whom the Court may authorise will cause the document to be registered in accordance with the law or where registration is not required, the Court may make such order as it thinks fit and where the Court orders for registration of the document, it may be done at the expenses required for registration as per orders of the Court. Order 43 Rule 1(i) read with Section 104 of the Code provides for appeals from the order of the Court passed under Rule 34 of Order 21 of the Code disposing of the objection to the draft of document or of an endorsement.
10. A reading of Order 43 Rule 1 (i) reveals that so far as the order either approving or directing alteration in the draft of the document or the transfer deed are appealable and the party aggrieved can file an appeal from that order.
11. In the present case, the stage of placing the draft by decree holder before the Court and of objection thereto etc., had already passed away. It appears that the Court had appointed the Commissioner and the warrant of appointment of Commissioner had been handed over and the Commissioner was supplied with the very draft of the sale deed as verified by the Court itself under Clause (3) of Rule 34 and the Commissioner complied with Court's direction and submitted his Report. If no appeal had been filed from that order of the Court in the present case, of approving or altering the document, then, that order by itself had become final.
12. So far as the Order of the Court dated 29.10,1994 or the Commissioner's Report dated 29.10.1994, are concerned, the Commissioner's Report is only to the effect that Commissioner had performed the job assigned to him by the Court, that is, he on behalf of the Court, has executed the sale deed in compliance with the direction of the Court and in accordance with the draft as approved by the Court and got the same registered as well and received the receipt which the Commissioner submitted along with his Report to the Court. The Court has only accepted that the job assigned to the Commissioner has been performed by him by its order dated 29.10.1994. This order dated 29.10.1994 was not an order and could not be said to be an order approving the draft of the sale deed which had been passed earlier to the date of handing over Commissioner of warrant. Order 43 Rule 1 (i) does not provide for an appeal from an order, where the Commissioner has been assigned with certain job and has submitted his Report, that means he has performed his job which the Courts accepts as that he has properly performed.
13. The acceptance of the Commissioner's Report also cannot amount to decree in my opinion. So the appeal which purports to have been filed under Section 96 or 97 of the Code has not been maintainable as held by the lower appellate Court. Apart from that, the lower appellate Court has also mentioned that even it cannot be taken to be a final decree, it is only a routine order in execution case. But even if be taken to be final decree, in view of Section 97 of the Code, the appeal before the tower appellate Court was not maintainable as appeal from the preliminary decree which had been filed had been withdrawn as had been dismissed not pressed. Therefore, I do not think that the Court below has committed any error of jurisdiction. In my opinion, the order passed by the learned Civil Judge, in the present case dismissing the appeal R.A. No. 101/1995 does not suffer from any error of law or jurisdiction within four corners of Section 115 of the Code. Thus considered in my opinion, the Civil Revision is devoid of merits and is liable to be dismissed and as such is hereby dismissed with costs.