In O.S No. 1193 of 1944 on the file of the Court of the District Munsif, Calicut, there was a decree for the redemption of a kanom. Subsequent to the decree the Kanomdar, who continued in possession, cut down certain teak trees standing on the property and sold them to Kunhi Koya Thangal and Imbichikoya Thangal. When the trees were in transit the decree-holder applied to the Court and the logs were seized by an officer of the Court. The two Thangals who had purchased the trees then preferred a claim petition under O. 21, R. 58 C.P.C Their claim was allowed by the District Munsif. The decree-holder thereon filed an appeal in the Court of the Subordinate Judge, Calicut. A preliminary objection was taken before him that the appeal was not competent and that the decree-holder, if he felt aggrieved by the order of the learned District Munsif, should file a separate suit. The learned Subordinate Judge overruled the objection, held that an appeal lay, set aside the order of the learned District Munsif and remanded the petition for fresh disposal under S. 47 Civil Procedure Code. Against that order a civil revision petition and a civil miscellaneous second appeal have been filed.
I am unable to agree with the view of the lower appellate Court. For one thing, I fail to see how this matter can be regarded as one arising under S. 47 C.P.C at all. That section deals only with proceedings relating to the execution, discharge or satisfaction of a decree. The action of the judgment-debtor in cutting and selling the trees might amount to acts of waste in regard to which the decree-holder has his recognised remedies. But how any attempt to defeat or restrain the acts of waste of the judgment-debtor can be described as a matter relating to the execution, discharge or satisfaction of the decree is what I find it hard to see. The learned Subordinate Judge seems to have considered that the case fell within the scope of S. 52 of the Transfer of Property Act and that therefore S. 47 C.P.C, was attracted. Even supposing for the moment that the latter part of his reasoning is sound, I do not agree that S. 52 Transfer of Property Act can be applied to the present case. S. 52 deals only with immovable property and S. 3 is explicit that standing timber is not immoveable property. The definition reads:
“Immovable property does not include standing timber, growing crops or grass.”
Mr. Pocker argued that for purposes of determining whether an appeal lies or not, we must have regard to the Civil Procedure Code and as the expression “immovable property” is not defined in the Civil Procedure Code, we should look into the definition of the expression given in the General Clauses Act. That is no doubt so. But then it is an error to assume that the scope of S. 52 can be enlarged by introducing into it in this indirect manner the definition of the expression “immovable property” as it appears in the General Clauses Act.
The learned Subordinate Judge basing himself on the decisions in Ashloke v. Bodha Garderi(1) and Shiv Dayal v. Puttulal (2), appears to have considered that in certain cases standing trees may be treated as immovable property, depending upon the intention of the owner thereof. Neither of those two decisions has however any application to the facts of the present case. In both those cases the trees in question were also fruit-bearing trees and in respect of such trees intention may decide whether they are to be regarded as fruit-bearing trees or standing timber. But in the present case, we are concerned with teak trees and nobody has so far suggested that they should be described as fruit-bearing trees. I am of opinion that the decision of the lower appellate Court is erroneous and accordingly set it aside with costs throughout in the civil revision petition.
N.R.R