Friday 28 December 2018

Whether second appeal is maintainable against order passed in application under O 21 R 97 of CPC?

When the application of Order 21 Rule 97 CPC is adjudicated, it is enveloped within the definition of decree and first appeal having been preferred, the provisions of CPC will come into play. When the proceeding of this character reach the District Court in a state of appeal, the procedure which is prevailing in ordinary Court of the country with regard to the proceeding, the ordinary Rule of CPC will apply.

7. In the case of R.M.A.R.A. Adaikappa Chettiar v. R. Chandrmekhara Thevar MANU/PR/0005/1947 : AIR 1948 PC 12, while considering a similar ratio of law Lord Simond observed:

"The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedures applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appeal."
8. In this case against the adjudication of decree first appeal was preferred by ordinary application of civil procedure code, therefore, if the first appeal is adjudicated by ordinary application of procedure of CPC, second appeal would lie.

W.P.(227) No. 249 of 2018

Decided On: 22.03.2018

 Sita Devi Sharma Vs. Mukta Ben

Hon'ble Judges/Coram:
Goutam Bhaduri, J.

Citation: AIR 2018(NOC) 927 Chh.
Read full judgment here: Click here
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