The Allahabad High Court, in a recent judgment, has ruled that a first appeal under Section 96 of the Code of Civil Procedure (CPC), 1908, is not legally maintainable against an order passed in an execution proceeding arising from a suit decided by a Court of Small Causes. The court held that the appropriate remedy against such an order is a revision under Section 25 of the Provincial Small Cause Courts Act, 1887.
The decision was delivered by Justice Sandeep Jain while dismissing a first appeal filed by an objector whose application under Order 21 Rule 97 of the CPC was rejected by the executing court in Meerut.
Background of the Case
The matter originated from SCC Suit No. 48 of 2009, titled Akil Ahmad and another Vs. Nora Fransis. The suit resulted in an ex-parte decree for eviction on February 18, 2010. Subsequently, the decree-holders initiated Execution Case No. 1 of 2010 to obtain possession of the disputed premises.
During the execution proceedings, the appellant, Pratap Fransis, filed an objection under Order 21 Rule 97 of the CPC, claiming ownership of the property and resisting the execution. The Additional District Judge, Court No. 3, Meerut, dismissed this objection via an order dated January 15, 2025. Aggrieved by this dismissal, Pratap Fransis filed the present First Appeal Defective No. 185 of 2025 before the Allahabad High Court.
Appellant’s Arguments
Counsel for the appellant argued that the original SCC suit was fraudulently decreed ex-parte. The appellant contended that he is the rightful owner of the disputed property based on a will executed in his favour by his father, Fransis, on April 11, 2007. He submitted that as the owner, the eviction decree could not be executed by dispossessing him from the property.
The court was also informed that the appellant has filed a separate Original Suit, No. 74 of 2025, seeking a declaration that the ex-parte decree of February 18, 2010, is null and void, and to establish his ownership based on the will. This suit is currently pending.
Court’s Analysis and Findings
Justice Sandeep Jain, after hearing the counsel and perusing the record, first addressed the preliminary objection raised by the High Court’s office regarding the maintainability of the appeal.
The court observed the established legal principle that in an SCC suit, “the title of the parties cannot be decided and only the relationship of landlord and tenant is to be seen between the parties.” It noted that the appellant’s claim to ownership is based on a will that became effective upon his father’s death on May 4, 2016, which was subsequent to the SCC suit being decreed on February 18, 2010, against Nora Fransis, the appellant’s first wife, who was the tenant.
The central issue for determination was the legal remedy available against the order dismissing the appellant’s objection. The court referred to the Provincial Small Cause Courts Act, 1887 (PSCC Act). It pointed out that Section 24 of the PSCC Act specifies which orders are appealable, limiting them to those mentioned in clause (ff) or clause (h) of Section 104(1) of the CPC.
The court then quoted Section 25 of the PSCC Act (as applicable in Uttar Pradesh), which provides for the remedy of revision:
“25. Revision of decrees and orders of Courts of Small Causes.- The District Judge, for the purpose of satisfying himself that a decree or order made in any case decided by a Court of Small Causes was according to law, may of his own motion, or on the application of an aggrieved party made within thirty days from the date of such decree or order, call for the case and pass such order with respect thereto as he thinks fit.”
Based on this statutory framework, the court determined that the impugned order was not appealable.
Decision
Concluding its analysis, the court stated, “It is apparent that the impugned order is not an appealable order under Section 24 of the P.S.C.C. Act and is only a revisable order under Section 25 of the P.S.C.C. Act, but the objector has filed First Appeal under Section 96 CPC, which is clearly not maintainable.”
Upholding the office’s objection, the High Court dismissed the appeal. The judgment concluded, “Accordingly, the objection regarding maintainability of the instant appeal is upheld and consequently, the instant appeal is dismissed as being not legally maintainable.”
