Vasanthakumari Vs. George Selvaraj

Vasanthakumari vs George Selvaraj

Disposition Revision petition dismissed Court Kerala Decided Oct 27, 2003

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Citation: sooperkanoon.com/730265
Court: Kerala High Court
Judge: P.R. Raman, J.
Decided On: Oct 27, 2003
Case Number: C.R.P. No. 1886 of 2003
Subject: Civil
Disposition: Revision petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

Key legal issue: Civil
Outcome / disposition: Revision petition dismissed
Acts & sections: Code of Civil Procedure (CPC) , 1908 - Order 21, Rules 102 and 103

Parties & Advocates

Appellant / Petitioner

Vasanthakumari

Advocate M. Balagovindan and; P.M. Joseph, Advs.

Respondent

George Selvaraj

Legal References

Acts: Code of Civil Procedure (CPC) , 1908 - Order 21, Rules 102 and 103
Cases Referred: Ram Prasad Rajak v. Nand Kumar and Bros. and Anr.
Reported In: 2004(1)KLT243

Excerpt

- orderp.r. raman, j.1. in this case the execution court rejected the claim petition under order xxi, rule 102. as per rule 102 the order passed deemed to be a decree for the purpose of appeal. the petitioner preferred an appeal and the appellate court confirmed the order, against which the present civil revision petition is filed.2. order xxi, rule 103 is similarly worded as is in order xxi, rule 58(3) of the c.p.c interpreting the said provision the division bench of this court in anto mamkoottam v. peruvanthanam service co-operative bank (1996 (2) klt 962) held that a further second appeal will lie against the order passed under order xxi, rule 58(4), even though there is no specific reference to further appeal incorporated in that section. the same view was taken in ghasi sahu and anr. v. himachal sahu and anr. (air 1986 orissa 170) and mohammed jameel ahmed ansari v. ishrath sajeeda and ors. (air 1983 ap 106). the apex court in ram prasad rajak v. nand kumar and bros. and anr. (air 1998 sc 2730) considered a similar question arising under the bihar buildings (lease, rent and eviction) control act (4 of 1983). in para 6 of the judgment it is held as follows:'we have noticed that the respondents filed a revision under section 14(8) of the act against the judgment of the appellate court granting a decree for eviction in favour of the appellant. obviously that revision was not maintainable as there is no provision in section 14(8) of the act for a revision against an appellate order. the said sub-section refers only to an order passed by the trial court for recovery of possession in favour of the landlord. if the trial court dismisses the suit, the only remedy of the landlord is to file an appeal under section 96, c.p.c. when such an appeal is disposed of by the appellate court, the further remedy of the aggrieved party is only under section 100, c.p.c. and there is no question of reverting back to section 14(8) of the act. by no stretch of imagination, the.....

Full Judgment

ORDER

P.R. Raman, J.

1. In this case the execution court rejected the claim petition under Order XXI, Rule 102. As per Rule 102 the order passed deemed to be a decree for the purpose of appeal. The petitioner preferred an appeal and the appellate court confirmed the order, against which the present Civil Revision Petition is filed.

2. Order XXI, Rule 103 is similarly worded as is in Order XXI, Rule 58(3) of the C.P.C Interpreting the said provision the Division Bench of this Court in Anto Mamkoottam v. Peruvanthanam Service Co-operative Bank (1996 (2) KLT 962) held that a further second appeal will lie against the order passed under Order XXI, Rule 58(4), even though there is no specific reference to further appeal incorporated in that section. The same view was taken in Ghasi Sahu and Anr. v. Himachal Sahu and Anr. (AIR 1986 Orissa 170) and Mohammed Jameel Ahmed Ansari v. Ishrath Sajeeda and Ors. (AIR 1983 AP 106). The Apex Court in Ram Prasad Rajak v. Nand Kumar and Bros. and Anr. (AIR 1998 SC 2730) considered a similar question arising under the Bihar Buildings (Lease, Rent and Eviction) Control Act (4 of 1983). In para 6 of the judgment it is held as follows:

'We have noticed that the respondents filed a Revision under Section 14(8) of the Act against the judgment of the appellate court granting a decree for eviction in favour of the appellant. Obviously that revision was not maintainable as there is no provision in Section 14(8) of the Act for a revision against an appellate order. The said sub-section refers only to an order passed by the trial court for recovery of possession in favour of the landlord. If the trial court dismisses the suit, the only remedy of the landlord is to file an appeal under Section 96, C.P.C. When such an appeal is disposed of by the appellate court, the further remedy of the aggrieved party is only under Section 100, C.P.C. and there is no question of reverting back to Section 14(8) of the Act. By no stretch of imagination, the appellate order or decree can be considered to be an order of the trial court for recovery of possession within the meaning of Section 14(8) of the Act. Hence the Revision Petition filed by the respondents before the High Court was not maintainable.'

3. The principle is that once it is deemed to be a decree it will not revert back after the appeal. Once it is deemed to be decree as contemplated under Order XXI, Rule 103 then after the appellate order it will not revert back and it will continue to be a deemed decree and therefore appealable. In the above circumstances, the defect noticed is sustained.

The petitioner shall take necessary steps to cure the defect. As such I hold that the Civil Revision Petition is not maintainable.

Same Court & Year Kerala · 2003 Same Parties Vasanthakumari vs George Selvaraj Same Subject Civil Same Judge P.R. Raman, J. Acts & Sections Code of Civil Procedure (CPC) , 1908 - Order 21, Rules 102 an...

Civil