When Can An Order Passed U/S 47 CPC Be Treated As A Decree? Rajasthan High Court Explains

The Rajasthan High Court has observed that orders passed by courts under Section 47 of the CPC read with Order XXI Rules 58, 97, and 99 of the CPC, would be treated as decrees and are appealable under Section 96 CPC. Section 47 CPC relates to questions to be determined by the Court executing decree. Order XXI Rule 58 relates to the adjudication of claims or objections tothe attachment of property. As per Rule 58(4), any order made with respect to adjudication of such claim or objection shall have the same force of a decree. Rule 97 deals with resistance or obstruction to possession of immovable property. Rule 99 deals with dispossession of immovable property belonging to any person other than the judgment debtor. Claims under Rule 97 are dealt with under Rule 98 and claims under Rule 99 are dealt with under Rul 100. As per Rule 103, the orders made under Rule 98 and 100 are to be treated as decrees. Justice Munnuri Laxman noted that Section 47 dealt with both— orders that can be treated as decrees and those that cannot be treated as decrees. The court added that those orders which were passed with reference to Rule 58, 97, and 99 would be considered as decrees as the same has been specifically provided under Rule 58(4) and Rule 103 of Order XXI. “Section 47 of the CPC thus comprehends both orders that can be treated as decrees and orders that cannot be treated as decree. The orders passed with reference to Section 47 read with Order XXI Rules 58, 97, and 99 of the CPC are deemed decrees, whereas any other orders passed under Section 47 of the CPC shall not be treated as decrees, as is clear from the reasoning given above,” the court said. The court noted that all other orders passed under Section 47 [except those under Rule 58,97, and 99] could not be treated as a decree. The court added that since an appeal would lie only from a decree passed by the court as per Section 96, the orders passed under Section 47 read with Rule 58,97 and, 99 were appealable orders and all other orders passed under Section 47 would not be appealable orders. “Section 96 of the CPC specifically provides that an appeal against a decree passed by a court exercising original jurisdiction, subject to other provisions contained in the CPC. This means that only orders in the nature of deemed decrees can be treated as decrees against which an appeal lies under Section 96 of the CPC. For any other kinds of orders that are not treated as decrees, no appeal lies under Section 96 of the CPC. and the only available remedy is other than an appeal,” the court said. The Court was hearing a challenge to the order of the Family Court wherein applications filed by the petitioner resisting execution of the decree passed by the Court of First Instance, Dubai, were rejected. Petitioner's wife had filed a suit before the Dubai Court seeking maintenance and dissolution of marriage in which decree was passed. For execution, execution petition was filed before the Family Court. The husband filed two applications opposing the execution petition. The first application was filed under Section 47 on the ground that the decree passed by the Dubai Court fell within the exceptions under Section 13, CPC, and thus could not be executed. The second application was filed under Section 44A, CPC, that the reciprocal arrangement between India and UAE was notified in 2020 i.e. after the decree was passed in 2019, and thus, the decree was not executable. Both the applications were dismissed by the Family Court. Hence, the petition was moved before the Court. In this, preliminary objection was raised on behalf of the respondent that the orders passed under Section 47 constituted decrees, and thus were appealable, and hence, the writ petition to challenge the same was not maintainable. The husband, on the other hand, argued that the orders passed under Section 47 were not appealable as it did not amount to a decree unless specifically defined. He thus contended that an appeal was not maintainable against such orders. After considering the contentions, the Court perused all the relevant provisions under CPC, and opined that any adjudication made under Rules 58, 97 or 99 or any order made therein had the same force and was subject to the same conditions as if it were a decree, which meant that any order under these provisions was assailable like an appeal, and such orders were deemed decrees. In the present case, the court noted that the order passed by the Family Court was not relatable to Section 47 of CPC read with Order XXI, Rules 58, 97 and 99, and was not appealable. The court added that since the orders were not appealable under Order XLIII, the only remedy available was under Articles 226 and 227 of the Constitution. The court thus rejected the preliminary objections raised by the wife [decree holder] with respect to the maintainability of the writ petition...

When Can An Order Passed U/S 47 CPC Be Treated As A Decree? Rajasthan High Court Explains

Nupur Agrawal

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