If Adjudication Precedes An Order Under Order 21 Rule 97 CPC, Then It Must Be Considered A ‘Deem Decree’ Which Is Not Revisable: Calcutta HC
Justice Bibhas Ranjan De, Calcutta High Court
The Calcutta High Court has clarified that if an order under Order 21 Rule 97 of the CPC is preceded by an adjudication, then it must be considered a deem decree which is not revisable.
The Court dismissed a Civil Revisional Application under Article 227 of the Constitution challenging the Order wherein an Application under Order XXI Rules 97, 98 and 101 of the Code of Civil Procedure (CPC) filed by the Petitioner was rejected.
A Single Bench of Justice Bibhas Ranjan De observed that “a decision on the sole issue of maintainability can indeed be considered a form of adjudication. It serves as a critical threshold that can determine whether a case proceeds to a full hearing on its merits. However, the nature of this adjudication may vary as it can be treated as a standalone issue or intertwined with the merits of the case.”
Advocate Arijit Bardhan represented the Petitioner, while Senior Advocate Utpal Bose appeared for the Respondent.
The Petitioners had filed an Application under Order XXI Rules 97, 98 and 101 of the CPC arising out of a Title Execution Case in which the Petitioners being third parties to the decree, put into execution, prayed for declaring the original decree passed by the HighCourt to be not executable on account of the same being a nullity. The decree sought to be executed in the execution case was passed by the High Court wherein directions of eviction of the judgment debtors from the decreetal property together with damages and mesne profits was given.
However, it was dismissed on the grounds of being premature.
The Court noted that the Trial Court while determining the issue of maintainability clearly discussed the settled propositions of law through various cited judgments and was able to resolve the issue of maintainability by rightly providing the observation with regard to the prematurity of the miscellaneous application.
Even though the Impugned Order was not a traditional decree, the Bench stated that it satisfied all tests of a “deem decree” by adjudication of the matter in controversy conclusively and thereby determining the rights of the parties.
Consequently, the Court held that “impugned order cannot be said to be a non-adjudicatory order leading to maintainability of a revision application in terms of the ratio of the judgments relied on behalf of the petitioner which dealt with the order of rejection of application for want of jurisdiction unlike the issue of maintainability of the application here. Therefore, if an order under Order 21 Rule 97 of the CPC is preceded by an adjudication then it must be considered a deem decree which is not revisable. As a result, the only remedy left to the petitioners is to file appeal in terms of the provision of Order XXI Rule 103 of the CPC treating the order impugned as decree.”
Accordingly, the High Court dismissed the Application.
Cause Title: Vikas Parolia & Ors. v. Bhartiya Steel & Engineering Company Private Limited & Ors.
Appearance:
Petitioner: Advocates Arijit Bardhan, Sarosij Dasgupta and Saheli Bose
Respondent: Senior Advocate Utpal Bose; Advocates Madhupriya and Aniruddha Sinha
