Mt. Champa Debi vs Ram Chandra Marwari and Others

Mohamad Noor, J.—The respondents in this case purchased a house in execution of a mortgage decree. When they took out delivery of possession there was obstruction on behalf of the appellant Mt. Champa Debi on the ground that a portion of the property of which delivery of possession was sought was not included in the mortgage and belonged to her. The objection of the appellant prevailed before the executing Court. The respondents appealed to the District Judge of Manbhum who set aside the order of the first Court and ordered delivery of possession to issue. The objector has preferred this appeal and the only ground urged is that no appeal lay to the learned District Judge.

It has been conceded on behalf of the respondents that no appeal lay to the District Judge. But he contends that no appeal against the order of the District Judge lies to this Court. It is not necessary to decide this question though there are decisions to the effect that if a lower appellate Court entertains an appeal in cases in which no appeal lies there is a second appeal to this Court. The learned advocate for the respondents however contended that those are the cases in which the lower appellate Court entertains appeals against decrees, but that does not apply to cases of appeals against orders. I do not see any distinction between the two. Be that as it may, the order of the learned District Judge entertaining the appeal was without jurisdiction. This is a clear case for revision. We have power to interfere either under our appellate jurisdiction or under our revisional jurisdiction. The learned advocate for the respondents contended that we should not exercise our revisional jurisdiction inasmuch as the order of the learned District Judge is correct. In our opinion we should not enter into the merits of the case in which questions of facts are involved. The legislature has specifically provided that in cases where delivery of possession is obstructed on behalf of a third party, any order passed by the executing Court shall be final subject to the result of the suit provided for. In the circumstances I would set aside the order of the learned District Judge and restore that of the learned Subordinate Judge. As the appellant did not raise this question in the lower appellate Court, she is not entitled to any costs.

Madan, J.

I agree.