1. This is a very peculiar revision petition which is directed against the order dated 28-5-2002 passed on a memo which had been numbered as R.A 21/01 on the file of the Court of the Civil Judge (Sr. Dn.), Madikeri. By the impugned order, the learned Civil Judge had directed that the appeal shall be registered as Execution Appeal instead of as R.A 21/01 inasmuch as the appeal arises out of Ex. Case No. 125/95 on the file of the Prl. Civil Judge (Jr. Dn.), Madikeri.
2. It is on this controversy as to whether the said appeal should be designated as a Regular Appeal or as an Execution Appeal, the present revision petition is preferred. I have heard Sri Abdulla, learned counsel for the petitioners and Sri. Gaurishankar, learned Counsel for first respondent.
3. The brief facts leading to the above revision petition are that the present revision petitioner is a person who had filed an application under Order 21 Rule 97 of the Code of Civil Procedure (‘CPC’ for short) in Ex. Case No. 125/95 on the file of the Court of the Prl. Civil Judge (Jr. Dn.), Madikeri, as an obstructer when the decree in O.S 36/91 on the file of the Court of the Prl. Civil Judge (Jr. Dn.), Madikeri, was sought to be executed. O.S 36/91 in itself was a suit which had been filed by the first respondent in this revision petition as against the second respondent praying for specific performance of an agreement in respect of an extent of five cents of land in S. No. 56/23 of Block No. 8, Madikeri Municipality. The said suit was decreed. However, when the decree was sought to be executed and possession of the said five cents of land was sought to be handed over to the decree Page: 175-holder, the present revision petitioner raised an objection contending that he was already in possession of eight cents and he could not be disturbed from this portion of the land while executing the decree in favour of the first respondent in this revision petition.
4. It appears, the Executing Court having rejected his application, an appeal was preferred to the Court of the Civil Judge (Sr. Dn.) Kodagu, which was dismissed. As against the said order, the obstructer carried the matter by way of a revision in C.R.P 1479/01 to this Court. However, this revision petition was dismissed by this Court observing that the Civil Revision Petition was not maintainable as the revision petitioner was entitled to file an appeal against the order under challenge. It is thereafter that the present revision petitioner has preferred an appeal to the Court of Prl. Civil Judge (Jr. Dn.). Madikeri under S. 96 read with Or. 41 Rule 1 and Order 21 R. 103 CPC.
5. The office had registered this appeal as R.A 21/01 and on such registration, the respondents therein took objections contending that it cannot be registered as a Regular Appeal and it can only be designated as an Execution Appeal as contemplated under Rule 5(b) of the Karnataka Civil Rules of Practice (‘K.C.R’ for short). The Lower Appellate Court having accepted the memo filed praying for such re-designation of the appeal and having directed that the appeal to be renumbered as an execution appeal, the appellant is in revision before this Court.
6. Sri Abdulla, learned Counsel appearing for the revision petitioner submits that the scope of an execution appeal is much narrower and in fact the provisions of Rule 5(b) of the K.C.R.P are not very germane to the proceedings particularly in the light of the amendments that have been brought about in the CPC in the matter of the manner in which an obstructer, in the course of an execution of a decree, is to be treated and as to how an application filed under Order 21 Rule 97 CPC is to be disposed off. Order 21 Rule 97 reads as under:—
“Resistance or obstruction to possession of immovable property:— (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the applfcation in accordance with the provisions herein contained.”
7. On the disposal of an application by an obstructor under Rule 97 CPC, it is the submission of Sri Abdulla, learned counsel, that it amounts to a decree and in view of the provisions of Rule 103 CPC, it will have the same force as a decree and will be subject to the same conditions as an appeal as if it were a decree. Learned Counsel submits if that is the legal position, then an appeal preferred against an order passed on the adjudication of an application under Rule 97 of Order 21 CPC should necessarily be treated as a Regular Appeal and not as an execution appeal which itself is a misnomer according to the learned Counsel for the petitioner.
8. Sri Gaurishankar, learned Counsel for the respondent, however, countering this submission, is of the stand that an appeal contemplated under Rule 103 of Order 21 CPC can never take the same position as a regular appeal preferred under S. 96 CPC.
9. There is no gainsaying in the fact that an appeal preferred as against an order on an application under Rule 97 CPC is an appeal whether it is termed as a ‘Regular Appeal’ or by any other name and is governed by the provisions of Rule 103 of Order 21 CPC. On adjudicating an application under Rule 97 CPC, the resultant order is given the status of a decree and as against every decree, appeal is provided for under the Code. It is under such circumstances the provisions of Rule 103 CPC have been incorporated by the Amending Act 104 of 1976 indicating the manner in which such appeals are to be dealt with. Even if the appeal is styled as a Regular Appeal, the scope is again to be looked into from the provisions of Order 21 CPC. However, describing that as an execution appeal which was an expression in vogue earlier, is not an accurate description of an appeal of this nature.
10. The Lower Appellate court is directed to treat the appeal as not an execution appeal, but as an appeal as contemplated under Order 21 Rule 103 CPC.
11. It is clarified that irrespective of the nomenclature given to the said appeal, the scope and the manner in which the said appeal is to be disposed off Page: 176is governed by the provisions of Order 21 CPC and other relevant provisions of the Code. It is neither enlarged nor restricted by other provisions.
12. Civil Revision petition is disposed off with this clarification and direction.
13. Order Accordingly.