Lordship n Anatha venkadesh j 2nd speech super

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Notes on the online speech (13.04.2020) of
His Lordship Hon’ble Mr.Justice.N.Anand Venkatesh
“Scope of Appeal suits”

, .
What is Decree? Pls See Section 2 (2) of CPC
Decree means

  1. formal expression of an adjudication which, so far as regards
    the Court expressing it.
  2. conclusively determines the rights of the parties
  3. with regard to all or any of the matters in controversy in the
    suit and may be either preliminary or final.
    It includes
  4. Rejection of a plaint under order 7 Rule 11 of CPC
  5. Determination of any question in the application for
    restitution section 144 of CPC.
  6. Exparte decree also a decree within the meaning of Decree
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  7. Order adjudicating application under Order 21 Rule 98 or
    Rule 100 of CPC See 2014 6 CTC 98 (para 21)
    Para 21. The aforesaid authorities clearly spell out that the
    court has the authority to adjudicate all the questions
    pertaining to right, title or interest in the property arising
    between the parties. It also includes the claim of a stranger
    who apprehends dispossession or has already been
    dispossessed from the immovable property. The self-contained
    Code, as has been emphasised by this Court, enjoins the
    executing court to adjudicate the lis and the purpose is to
    avoid multiplicity of proceedings. It is also so because prior to
    1976 amendment the grievance was required to be agitated by
    filing a suit but after the amendment the entire enquiry has to
    be conducted by the executing court. Order XXI, Rule 101
    provides for the determination of necessary issues. Rule 103
    clearly stipulates that when an application is adjudicated upon
    under Rule 98 or Rule 100 the said order shall have the
    same force as if it were a decree. Thus, it is a deemed
    decree. If a Court declines to adjudicate on the ground that it
    does not have jurisdiction, the said order cannot earn the
    status of a decree. If an executing court only expresses its
    inability to adjudicate by stating that it lacks jurisdiction, then
    the status of the order has to be different. In the instant case
    the executing court has expressed an opinion that it has
    become functus officio and hence, it cannot initiate or launch
    any enquiry. The appellants had invoked the jurisdiction of the
    High Court under Article 227 of the Constitution assailing the
    order passed by the executing court on the foundation that it
    had failed to exercise the jurisdiction vested in it. The
    appellants had approached the High Court as per the dictum
    laid down by this Court in Surya Dev Rai v. Ram Chander
    Rai and others ((2003) 6 SCC 675).

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