1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1113 OF 2009 ALONGWITH CIVIL APPLICATION NO.1371 OF 2009 Kashinath Hareshwar Joshi .. Appellant Versus Subhadrabai Satyanarayan Pardeshi & Ors.. Respondents Mr. G.V. Nagarsheth for the Appellant. Mr. P.N. Karlekar for Respondent Nos.1 to 5. CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 2 ND FEBRUARY, 2010. PRONOUNCED ON : 19 TH MARCH, 2010. JUDGMENT : 1. Appeal admitted. By consent heard finally, forthwith. 2. The present Appeal from Order challenges the Judgment and Order of the District Judge, Palghar dated 9th July, 2009 in Regular Civil Appeal No.30 of 2007. By this order, the learned Judge has set aside 2 the order passed by the Civil Judge, Junior Division, Dahanu, in Regular Darkhast No.24 of 1967. 3. The genesis of the present dispute has arisen with the dawn of independence in the country. A Regular Civil Suit No.219 of 1947 was filed by the grand father of the appellant before the Civil Judge, Junior Division, Dahanu, Dist. Thane, against the predecessors of respondent Nos.1 to 3. The plaintiff had sought a declaration and possession of the land bearing Survey No.27-A, Hissa No.2, admeasuring 5¼ Gunthas situated at Kasbe, Taluka Palghar, District Thane. The plaintiff had also sought to demolish the structure thereon at the costs of the respondents. 4. On 20th April, 1949, the Suit was decreed. It was declared that the appellant’s grand father Sitaram Krishna Joshi was entitled to possession of the aforesaid land after removing the household articles from the structure on the land. The respondents and their tenants acknowledged receipt of these articles 3 on 9th October, 1998. The possession receipt was also sent by the decree holder, i.e. the appellant herein, on the same date. A Panchanama was drawn by the Bailiff of the Court and a report was filed on 9th October, 1998 in the executing Court. 5. An application was filed under Order 21 Rule 101 of the Code of Civil Procedure by the respondents on 4th November, 1998, claiming excess execution. The respondents contended that possession of the land bearing Survey No.27, Hissa No.6 and 6(part) was given by the Bailiff to the appellant. The respondents, therefore, claim restoration of this land and damages. An injunction application was also filed under Order 39 read with Section 151 of the Code of Civil Procedure on the same date. On 20th January, 2000, the executing Court, i.e. the Joint Civil Judge, Junior Division, Palghar, rejected the respondents’ application. A Review Petition was filed by the respondents on 17th February, 2000, contending that the appellant-decree holder had not proved that Survey No. 4 27, Hissa No.6 was already in his possession. That Review Application was dismissed. A Writ Petition bearing Nos.60 of 2001 was filed by the respondents against this order passed by the executing Court. It was converted later into a Civil Revision Application No.281 of 2002. The Civil Revision Application was withdrawn by the respondents on 26th September, 2006 with liberty to challenge the order dated 20th January, 2000 before the appropriate forum. 6. Civil Appeal No.30 of 2007 was filed by the respondents before the District Judge, Palghar, Dist. Thane, for restoration of possession and damages. This Appeal was allowed and the order passed by the trial Court was set aside on 9th July, 2009. Hence, the present Appeal from Order. 7. Before turning to the merits of the present case, it is necessary to deal with the preliminary objection raised by Mr. Karlekar, the learned Advocate for the respondents. He submits that an Appeal from Order is 5 not maintainable against the order passed by the District Court, Palghar, in view of the provisions of Section 104 of the Code of Civil Procedure. According to him, the present Appeal from Order arises from an order passed by the executing Court and, therefore, Order 41 Rule 23 and 23A of the Code of Civil Procedure are not applicable. He submits that these provisions of the Code of Civil Procedure would be applicable only in respect of an original decree holder, as held by the Kerala High Court in the case of Jose Thengumpillil vs. Secretary, Peruvanthanam Service Co-operative Bank Ltd. & Anr., reported in AIR 1997 Kerala 261. On the other hand, Mr. Nagarsheth, appearing for the appellant, points out that the Appeal from Order is maintainable in view of the provisions of Order 41 Rule 23 and 23-A of the Code of Civil Procedure. He submits that an appeal was filed against a common order passed by the executing Court on two applications, one filed under Order 21 Rule 1(d) and the other under Order 39 Rules 1 and 2. The Appellate Court has remanded the matter to the trial 6 Court for a fresh consideration. He submits that, therefore, the present Appeal from Order would be maintainable. 8. To substantiate his submission, Mr. Karlekar has pointed out the provision of Section 104 of the Code of Civil Procedure. This Section specifies the orders from which an Appeal lies. Section 104 reads as follows : “104.Orders from which appeal lies.- (1). An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- [*****] [(ff) an order under section 35-A;] [(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;] (g) an order under section 95; (h) an order under any of the provisions of this Code imposing a 7 fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules; [Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.] (2).No appeal shall lie from any order passed in appeal under this section.” 9. Order 43 Rule 1(u) of the Code of Civil Procedure speaks about an Appeal from Order passed under Rule 23 or Rule 23-A of Order 41, remanding a case where an Appeal would lie from the decree of the Appellate Court. In the present case, undoubtedly, an Appeal would lie from the order of the trial Court. The Appellate Court has remanded the matter to the trial Court instead of deciding the same on merits. Therefore, considering the provisions of Order 41 Rule 23 of the Code of Civil Procedure, the present Appeal from Order would lie. Order 41 Rule 23 reads as follows : 8 “23.Remand of case by Appellate Court.- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re- admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.” 10. Similarly, Order 41 Rule 23-A of the Code of Civil Procedure reads as follows : “23-A. Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.” 9 11. Considering the aforesaid provisions of law, in my opinion, the Appeal from Order is maintainable and the preliminary objection raised by Mr. Karlekar is unsustainable. 12. The judgment of the Kerala High court in the case of Jose Thengumpillil vs. Secretary, Peruvanthanam Service Co-operative Bank Ltd. & Anr. relied upon by Mr. Karlekar has no application to the facts in the present case. 13. Considering the merits of the present case, in my opinion, the Appellate Court has committed a grave error by remanding the matter for trial. The Appellate Court has held that the trial Court ought to have decided the application for execution filed under Order 21 Rule 97 of the Code of Civil Procedure by following the procedure prescribed under Order 21 Rule 105 of the Code of Civil Procedure. The Appellate Court has held that the trial Court instead of following that procedure has passed an order granting execution of the decree without any basis. The 10 Appellate Court has lost sight of the fact that the order of the trial Court was passed on an application filed by the respondents under Order 21 Rule 101 of the Code of Civil Procedure claiming that there was excess execution. An application was also filed by the respondents for an injunction under Order 39 of the Code of Civil Procedure on 4th November, 1998. The order of the trial Court dated 20th January, 2000 is a common order passed in both these Applications. 14. It is true that Rules 97 to 101 of Order 21 of the Code of Civil Procedure enable the executing Court to deal with obstructions encountered by the decree holder from any person, including the Judgment-Debtor, as in the present case. A separate Suit need not be filed against the obstructionist and the Court is expected to consider all relevant issues while deciding the application. It is now well settled that only those questions which legally arise between the parties are to be determined by the Court executing the decree. The adjudication mentioned in Order 21 Rule 97(2) or for that matter an application under 11 Order 21 Rule 101 need not necessarily involve a detailed enquiry or collection of evidence. The Court can adjudicate on admitted facts or averments of the Obstructer. It is only if the Court finds it necessary, that it may direct the parties to adduce evidence for determination of the issues which arise between the parties. The entire procedure need not be followed denovo in all cases. 15. In the present case, the trial Court, on the basis of the documents on record, including the possession warrant and the possession receipt, has held that the decree has been executed only with respect to Survey No.27-A, Hissa No.2. On the basis of the documents on record, the trial Court found that Survey no.27, Hissa No.6 was not a part of the present proceedings and, therefore, no warrant of possession had been issued in respect of this land. The trial Court has found from the documents on record that the possession of Survey No.27, Hissa No.6 was handed over in Special Darkhast No.28 of 1951 to Hareshwar Sitaram Joshi i.e. the father of the appellant. He was the 12 decree holder and a possession receipt dated 16th January, 1956, had been issued by him. The trial Court, therefore, has rightly held that the question of executing the decree with respect to Survey No.27, Hissa No.6 did not arise, as the land was already in possession of the decree holder. The decree which was put in execution was in respect of land bearing Survey No.27-A, Hissa No.2, admeasuring 5¼ Gunthas. It is the execution of this decree which has been obstructed by the decree holder who has filed Exhibits “73” and “74” in Regular Darkhast No.34 of 1967. 16. The trial Court has, therefore, rightly held that the decree holder, i.e. the appellant herein, had not taken excess possession than what was mentioned in the possession warrant. The Appellate Court, in my opinion, has misconstrued the provisions of Order 21 Rules 97 and 101 of the Code of Civil Procedure. 17. In these circumstances, the Appeal from Order is allowed with exemplary costs. 13 18. In view of the above, Civil Application No.1371 of 2009 pending in the Appeal from Order does not survive and the same is dismissed as infructuous.