Saurendra Nath Mitra Judgment-Debtor v. Mritunjay Banarji Decree-Holder .

Dawson-Miller, C.J:— In my opinion the memorandum of appeal ought to be rejected. The judgment-debtor filed a petition in objection to the valuation given by the decree-holders for the purpose of sale proclamation. The petition in objection was filed on 22nd January, 1920. It was than ordered in the presence of the petitioner that the decree-holders should be informed and that the matter should be put up for hearing on 31st January, i.e, roughly in about a fortnight's time. The judgment-debtor therefore had plenty of notice that on 31st January his application would be heard and he ought to have taken proper steps to get his witnesses before the Court. He however did nothing, and in due course, that is on 31st January, the matter came up before the Subordinate Judge, and at that late period the judgment-debtor prayed for time to serve practice upon his witnesses. It is obvious he should have taken steps to do that at a much earlier period, and the Judge very properly rejected the application which he described as frivolous, and the petition in objection to the sale proclamation was accordingly rejected.

2. Now, the first point which has been taken before us is that the judgment-debtor is entitled to appeal from that order made in execution on the ground that it is a decree within the meaning of the definition in Section 2 of the CPC, and that this being a determination of a question under S. 47 of the Code, it is appealable as a decree. Before the present Code of Civil Procedure came into operation, there were certain cases in the Calcutta High Court in which it was decided that any question determined under Section 47 of the CPC, was appealable. One of the principal cases in which that decision was come to is Ganga Prosad v. Raj Coomar Singh(1). That view was dissented from by the Madras High Court in the case of Sivagami Achi v. Subrahmania Ayyar(2), and when the matter came up again before the Calcutta High Court in the year 1911, that Court in the case of Deoki Nandan Singh v. Bansi Singh(3) after reviewing the authorities on the subject, came to the conclusion that the Madras High Court was right and that the previous decision in Ganga Prasad v. Raj Coomar Singh was wrong. The question for determination in that case was very similar to the question for determination in this. There an order had been made by the executing Court by which the value of property directed to be sold under a decree had been assessed at a certain figure according to the statement of the decree-holder. A preliminary objection was taken upon the hearing of an appeal from that order on the ground that it was not a case falling within S. 47 of the Code, and that it was not a decree within the meaning of S. 2 of the Code, and consequently was not appealable. Now the learned Judges pointed out, following the earlier case of Behary Lal v. Kedar Nath Mullick(4), that an interlocutory order in the course of execution proceedings which decides, for instance, a point of law arising incidentally or otherwise is not a decree within the meaning of S. 2 of the Code of 1882, and that it was reasonably plain from the terms of S. 2 that an order to be a decree must conclusively determine the rights of the parties, and that if any other view were adopted, the result would be that an appeal might be preferred against every order in the course of execution proceedings, and that this could hardly have been contemplated by the framers of the Code.

3. The only question is whether under the present Code any wider interpretation is to be given to S. 2, sub-S, (2), which defines “decree” and states that it shall be deemed to include the determination of any question within S. 47.

4. In my opinion these words must be limited by the words which immediately procede and unless the decision appealed from is one which in some way determines the rights of the parties with regard to all or any of the matters in controversy in the suit, it cannot be included under the definition of “decree.” In the present Case this is merely an interlocutory order and although it may be true to say that the Judge acts judicially in coming to the conclusion about valuation, that does not in itself make his determination a decree within the meaning of the section, and I think that this order is not appealable.

5. We are asked by the learned vakil who appears for the appellant to treat the matter as an application in revision. It is perfectly clear from what I have just stated at the beginning of my judgment that there is no ground whatever for supposing that he will make out a case in revision, if we were to allow him to serve notice upon the opposite party and to have the matter discussed. The facts are perfectly clear and there is no conceivable ground that I can see on which the Court would in fact have any powers in revision. For these reasons, I think, this memorandum of appeal should be rejected and that the application in revision should also be rejected.

6. Coutts, J.:— I agree.

V.S/R.K

7. Appeal rejected.