Najbun Nisa @ Najmul Nisa vs Masrool Alam

Petitioner aggrieved by the order dated 17.4.2007 passed by the Subordinate Judge, Buxar in Miscellaneous Case No. 2 of 2007 declining to admit the application filed under Order 21, Rule 97 of the CPC has preferred this Civil Revision application. Mr. Shashi Shekhar Dwivedi, Senior Advocate, appears on behalf of the petitioner, whereas Opposite Party is represented by Mr. S.K. Verma, Senior Advocate.

Stamp Reporter, relying on an order dated 20.6.2001 passed in Civil Revision No. 887 of 2001 (Jawahar Lal Singh vs. Poonam Chand Jaiswal) has objected to the maintainability of the revision application. Thereafter when the matter was placed before a learned Single Judge of this Court on 16.5.2002 he had referred the matter for decision by the Division Bench.

That is how the matter has been placed before us.

Shorn of unnecessary details, facts giving rise to the present application are that the petitioner filed application under Order 21, Rule 97 of the Code of Civil Procedure, hereinafter referred to as the Code, alleging apprehension that she may be dispossessed from the property in execution of a decree. It was registered as Miscellaneous Case No. 2 of 2007. The learned Judge heard the petition on the point of admission of the Miscellaneous case and by the impugned order declined to admit the same.

The question which falls for determination is as to whether an application dismissed at the threshold, without adjudication of the right of the party, is revisable or appealable.

The question referred needs examination of the Scheme of the Code.

Order 21, Rule 97 of the Code enables a person to file application apprehending dispossession in execution of the decree. Order 21, Rule 101 of the Code, inter alia, provides for determination of all questions including questions relating to right, title or interest in the property arising between the party to a proceeding on an application under Order 21, Rule 97 of the Code. Upon determination of the question as aforesaid, the Court is required to pass order under Order 21, Rule 98 or Order 21, Rule 100 of Code, as the case may be. In view of the language of Order 21, Rule 103 of the Code such an order shall be deemed to be a decree and subject to same condition as to an appeal.

In the present case petitioner''s application has been rejected at the threshold without making any inquiry into the right, title or interest of the party.

We are of the opinion that in a case wherein an application filed under Order 21, Rule 97 of the Code is dismissed at its threshold without making any inquiry into the right, title or interest of the party, then such an order cannot be said to have been passed either under Order 21, Rule 98 of the Code or Order 21, Rule 100 of the Code. Resultantly such an order cannot be termed to be decree in terms of Order 21, Rule 103 of the Code. We are of the opinion that order of such nature shall be revisable.

The order of this Court relied on by the Stamp Reporter (Jawahar Lal Singh vs. Poonam Chand Jaiswal) reads as follows:-

"The order disposing an application under Order XXI, Rule 97 of the CPC (for short ''the Code'') is appealable in terms of the provisions contained in Rules 100, 101, 103. Accordingly, I find that the office report is right. The Revision application is not maintainable against the impugned order."

We are of the opinion that enunciation of law in such a wide term does not flow from the Scheme of the Code. As said earlier, if the application filed is rejected at the threshold without adjudicating the question relating to right, title or interest in the property, revision would lie. However an order in terms of Order 21, Rule 97 or 100 of the Code upon adjudication, appeal would lie.

Accordingly, we overrule the objection of the Stamp Reporter and hold that Civil Revision is maintainable. Now the record be laid before the learned Single Judge.