Hasumatiben Wd/o Pranjivandas Narottamdas Desai v. Ambalal Krishnalal Parikh

S.L. TALATI

(1) The petitioner-original decree-holder of civil suit no.1396 of 1975 has filed this petition under the following circumstances:

(2) The petitioner obtained a decree in Civil Suit No. 1396 of 1975 and by that decree he became entitled to possession of the premises after 31 because the tenant was granted time to vacate the suit premises upto 31-8-1978. The decree-holder thereafter filed an execution petition being Execution Petition No. 361 of 1978 in the Court of Small Causes Judge Vadodara. Incidentally we may say that that was the Court which had passed the original decree. The defendant raised a contention and his contention was that his original landlord Pranjivan Narottamdas expired and widow Hasumatiben who had filed the execution petition had no right to file the petition without obtaining succession certificate. The second contention which was of some importance was that he had called upon the widow to express condolences on the death of the deceased and at that time he expressed his difficulty and on request being made the petitioner agreed to continue him as a tenant on payment of Rs. 200- per month and it was also agreed that further negotiations would take place by which he would like to purchase the property to which the petitioner agreed. The learned Judge of the Court of Small Causes Vadodara by an order dated 31-7-1979 negatived the objections and an order was passed by which warrant for possession was issued. Being aggrieved by that order the defendant filed Civil Miscellaneous Appeal No. 137 of 1979 which was heard by the Second Extra Assistant Judge Vadodara. The learned Judge came to the conclusion that Civil Miscellaneous Appeal was not maintainable and therefore an order was passed to the effect that the appeal may be converted into a revision application and thereafter Revision Application was to be heard. The petitioner challenged that order by filing this Civil Revision Application. The contention of the petitioner is that no Civil Revision Application would lie to the District Court. The respondent appeared and raised a contention that the learned District Judge should have heard Civil Miscellaneous Appeal which was filed by him and that in fact appeal would lie from the order which was passed by the learned Judge of the Court of Small Causes Vadodara.

(3) The matter came up for hearing before my brother Judge D. N. Shukla J. where the arguments were advanced on the question as to whether an appeal would lie or would not lie from an order which was passed in execution of a decree. This Court in a case reported in 20 G.L.R. at page 711 (Mohanlal Maneklal Shah v. Bai Maniben w/o. Gordhandas Kevaldas) had decided that an appeal would not lie. However there was another judgment of the Division Bench of Patna High Court reported in A.I.R.1979 Patna at page 308 (M/s. Parshava Properties Ltd. v. A . K. Bose) in which it was held that an appeal would lie. There were other rulings of different High Courts expressing divergent views It was therefore felt that this was a case of considerable importance and therefore it was required to be decided by a Division Bench and therefore by an order dated 18-2-1981 the matter was referred to the Division Bench so that the Division Bench might decide this Civil Revision Application. That is how this matter has come up before us.

(4) The first question which was argued at great length was as to whether after the amendment of sec 2(2) of the Civil Procedure Code an appeal would lie from an order passed under sec. 47 of the Civil Procedure Code. The learned advocates Sarvashri P. B. Majmudar V. J. Desai C. K. Takwani J. G. Shah K. S. Shah R. N. Shah and P. V. Nanavati argued the matter before us at great length. The learned advocate Shri J. G. Shah assisted by Miss D. I. Shah argued the matter on behalf of the respondent while the other advocates supported the learned advocate Shri P. B. Majmudar who had originally filed the petition and this being a matter of importance they had intervened.

(5) Before we deal with the problem we would like to refer to certain rulings to which reference was made by both the parties.

(6) The learned advocate Shri J. C. Shah mainly relied upon a case M/s. Properties Ltd. v. A. K. Bose reported in A.I.R. 1979 Patna at page 308 In that case it was held that whenever the adjudication in question conclusively determines the rights of the parties with regard to all or any of the matters in controversy and the determination is in respect of a controversy in a suit it must be considered to be a decree within the meaning of sec. 2(2) of the Civil Procedure Code. It was also held that the word suit occurring in sec. 2(2) of the Civil Procedure Code must be construed in its wider meaning as including proceedings which are continuation of the suit in the eye of law the determination