Allowed

Deelip @ Bandu Abasaheb Kulkarni v. Rahunath Ramrao Deshmukh and Anr.

Bombay HC27 Nov 2014SA/114/2012

Case brief

AI extract

What is this about?

This Second Appeal challenged an order under Section 47 of the CPC. The Court held that Section 47 does not involve a 'decree' as per Section 2(2) of the CPC. With the appellant agreeing to withdraw this appeal to file a review or convert the application, the appeal was allowed to be withdrawn.

What did the court decide?

Allowed to be withdrawn with liberty to file review of the order dated 4.1.2012 and permission to seek conversion of the application to be under Order XXI Rule 97 CPC.

Deelip @ Bandu Abasaheb Kulkarni Vs Rahunath… — Civil Procedure and Limitation | Bombay HC (2014)

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Second Appeal No.114/2012

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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SECOND APPEAL NO.114 OF 2012

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Deelip @ Bandu s/o Abasaheb Kulkarni... APPELLANT

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VERSUS

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Raghunath s/o Ramrao Deshmukh and another

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... RESPONDENTS

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Shri M.M. Bhokarikar, Advocate for appellant Shri D.K. Kulkarni, Advocate for respondent No.1

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CORAM: R.G. KETKAR, J. DATED: 27th November, 2014.

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ORAL ORDER :

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Heard Mr. Bhokarikar, learned counsel for the appellant and Mr. D.K. Kulkarni, learned counsel for respondent No.1 at length.

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By this appeal under Section 100 of the Code of Civil Procedure, 1908 (for short C.P.C.), the appellant has challenged the judgment and order dated 21.7.2011, passed by learned Jt. Civil Judge, Junior Division, Parli Vaijnath below Exh.67 in Regular Darkhast No.44/2001 as also the judgment and decree

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Second Appeal No.114/2012

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dated 4.1.2012, passed by learned District Judge-1, Ambajogai in Regular Civil Appeal No.111/2011. By these orders, the courts below dismissed the application filed by the appellant under Section 47 of the C.P.C. Section 2(2) of the C.P.C. defines the expression"decree" and the same reads as under :

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"2. Definitions:- In this Act, unless there is anything repugnant in the subject or context, ___

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(1) . . . . . .

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(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include:-

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(a) any adjudication from which an appeal lies as an appeal from an order, or

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(b) any order of dismissal for default.

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Explanation :- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

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Perusal of the definition of "decree" clearly shows

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that the expression "decree" does not include the determination of any question within Section 47 of the C.P.C. Mr. Bhokarikar

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Second Appeal No.114/2012

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invited my attention to the order dated 25/11/2011, in Writ Petition No.9064/2011. In that order, the contention raised on behalf of the appellant that though application at Exh.67 is styled as application under Section 47 of the C.P.C., it was in fact application under Order XXI Rule 97 of the C.P.C. was recorded. In para 3 of that order, submission made on behalf of the appellant that he has preferred Misc. Appeal and that he will take necessary steps to file Regular Civil Appeal or convert the said appeal into Regular Civil Appeal, was also noted. Liberty was reserved to the respondent to raise all objections as are permissible in the appeal that may be filed or Misc. Appeal that may be converted. In para 21, the learned District Judge recorded that applicant has withdrawn Misc. Civil Appeal and has filed Regular Civil Appeal before the District Court.

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In view thereof, in my opinion, basically the learned District Judge ought to have dismissed the appeal on the ground of maintainability as the expression "decree" does not include the determination of any question under Section 47 of the C.P.C. If the substantive appeal under Section 96 is not maintainable, obviously this Second Appeal is also incompetent and accordingly, it is required to be dismissed.

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Realising this position, Mr. Bhokarikar states that, he

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Second Appeal No.114/2012

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has instructions to withdraw this appeal and appellant may be given liberty to file appropriate application for review of the order dated 4.1.2012, passed by the learned District Judge-1, in Regular Civil Appeal No.111/2011. He further submits that, liberty may be reserved to the appellant to seek permission of the District Court for converting application dated 3.4.2010 at Exh.67 from one under section 47 of the C.P.C. to one under Order XXI Rule 97 of the C.P.C., if so advised. In view thereof, appeal is allowed to be withdrawn with liberty as prayed for.

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fmp/sa114.12

Deelip @ Bandu Abasaheb Kulkarni v. Rahunath Ramrao Deshmukh and Anr.

Case brief

What is this about?

What did the court decide?

Deelip @ Bandu Abasaheb Kulkarni v. Rahunath Ramrao Deshmukh and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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Coram

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