Meghu Singh and Others vs Basudeva Jha and Others

Das, J.—These analogous matters come before me from the judgment of the District Judge of Darbhanga and arise out of a proceeding instituted by the appellants for delivery of possession. It is a matter of dispute between the parties whether the application of the appellants was an application u/s 47. of the Civil Procedure Code, or it was an application under Order XXI, Rule 97, Civil Procedure Code. If it was an application under Order XXI, Rule 97, Civil Procedure Code, then it is conceded that there was no appeal to the lower Appellate Court and consequently there is no second appeal to this Court.

The facts, so far as they are material for the purpose of these matters, are as follows. There was a decree against the respondents and in execution of that decree the appellants purchased the holding which was of the judgment-debtors. The appellants went to take possession of the property purchased by them, when they were resisted by the respondents before me who claim to be the prior purchasers of the property from the judgment-debtors. Owing to this; obstruction the appellants presented a petition before the learned Munsif stating that they had been obstructed by the respondents and asking for possession to be made over to them.

It is true that the appellants did not describe their application as an application either u/s 47 of the Code or an application under Order XXI, Rule 97, but it is pointed out that if they were making an application under Order XXI, Rule 97, the allegations would have been exactly, the same. Upon the presentation of this application the respondents came before the Court and filed two petitions objecting to the deputation of the Nazir. Upon this the Court treated the appellants'' petition as a petition under Order XXI, Rule 97, and it proceeded to investigate the matter under Order XXI, Rule 97. No objection was taken to this procedure by the appellants. The Court came to the conclusion that the decree obtained against the judgment debtors was a money decree and that the respondents were the prior purchasers of the property. Accordingly the Court of first instance dismissed the appellants'' application altogether.

The appellants appealed to the lower Appellate Court. The lower Appellate Court came to the conclusion that there was no right of appeal at all from an order passed in an application under Order XXI, Rule 97. The learned Vakil appearing on behalf of the appellants in this Court contends that the application was not an application under Order XXI at all but u/s 47. I am of opinion that this contention must be overruled, because, in my opinion, they never objected to the procedure adopted by the Court of first instance when the application was put in on their behalf. Therefore, it must follow that there is no appeal in this Court. The learned Vakil, however, argues that the lower Appellate Court should have decided the question whether the decree obtained by the Maharaja of Darbhanga was a rent decree or a money decree and in declining to decide that question it has declined a jurisdiction which was vested in it by law and that, therefore, this Court should interfere with that order u/s 115, Civil Procedure Code. In my view the Court of first instance in an elaborate judgment came to the conclusion that the decree was a money decree and not a rent decree. It may be that that decision is erroneous, but the Court of first instance had jurisdiction to decide the question in the way it did. It follows that the learned District Judge had no power to interfere with that finding under any provision of the Code at all and, in my opinion, I have no power to interfere with the order recorded by the Court of first instance on this point. In my opinion, the second appeal fails and must be dismissed with costs and the Rule obtained by the petitioner must also be discharged with costs, which I assess at one gold mohur.