The appellant in this Civil Miscellaneous Second Appeal is the judgment-debtor in O. S. No. 311 of 1919, on the file of the Principal District Munsif of Manamadura and the respondent is the decree-holder therein. The decree was transferred for execution to the Court of the District Munsif of Madura Town. On the 24th October 1925 the decree-holder applied for execution of the decree, both by arresting the judgment-debtor and attaching his moveables. This application having been put in more than a year after the immediately preceding application for execution of the decree, the decree-holder further prayed in an affidavit setting out the grounds therefor that the execution may be ordered as prayed, without first issuing notice as required by O. 21, Sub-R. 1 of R. 22. On this petition the Court made the following order on 26th October 1925: “Notice and arrest and attach”. It is clear that in ordering arrest and attachment without notice the Court acted under Sub-R. (2) of R. 22 of O. 21; but it failed to record its reasons for doing so. On the 27th October, the judgment-debtor was produced before the Court and he then applied for stay of proceedings in the execution application, in order to enable him to move the appellate Court as well as the Court which passed the decree and obtain a stay order from either of those Courts, In that application, he alleged that the decree had been satisfied already and that the application for execution was made fraudulently. On the 2nd November, 1925, the stay applied for was granted, on cash security being furnished and the judgment-debtor was then released from custody. On the 1st December, 1925, he presented an appeal to the District Court of Madura against the order of the 26th October, 1925, ordering his arrest without notice. The only ground on which the validity of that order was questioned was that the lower Court had no jurisdiction to order his arrest, without first issuing: notice to him, as required by R. 22 and that on that ground the order should be set aside. The District Judge dimissed the appeal on the ground that the order appealed from is not an order under Sect. 47, Civil Procedure Code, determining any question arising between the parties and relating to the execution of the decree. In other words, it did not amount to a decree as defined in Sect. 2, Sub-sect. (2) of the Civil Procedure Code. Against that order this second appeal is preferred.

On behalf of the appellant it is contended: (1) that the order of the District Munsif directing the arrest of the appellant is a decree, within the meaning of Sect. 2, Sub-cl. 2, Civil Procedure Code and the District Judge therefore erred in not entertaining the appeal: (2) The District Munsif acted without jurisdiction in ordering his arrest without first issuing notice to him under R. 22.

In my opinion both these contentions are untenable.

To take the second point first, under Sub-R. 2 of R. 22, the Court may; without issuing the notice prescribed by Sub-R. 1, order execution of a decree as prayed, if in its opinion it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. The decree-holder expressly requested the Court to exercise its powers under this sub-rule, alleging the grounds therefor and the Court granted that request but it failed to record its reasons for its order, as required by that Sub-rule. It is contended for the appellants that the failure to record the reasons makes the order void. The non-compliance with that requisite is in my opinion a mere irregularity and does not render the order void. I wish however, to observe that, when any enactment requires the recording of reasons by the Court for an order which it is empowered to pass, it should not overlook that requisite but it is bound to do so. The case may go up in appeal or revision and the appellate Court should be in a position to know from the order itself the reasons for the lower Court's passing the order objected to and should not be left to surmise what those reasons might be. In the present case, however, the affidavit of the decree-holder which was presented along with his application for execution makes it quite clear that the Court was invoked to exercise its powers under Sub R. 2, of O. 21, R. 22, and that it did so presumably on being satisfied with the allegations made therein by the decree-holder. This being the only ground of appeal to the lower appellate court, I think the conclusion of the learned District Judge dismissing the appeal is correct, whether or not the ground on which he dismissed the appeal, namely, that the order does not amount to a decree and is therefore not appealable is correct. It follows that this second appeal also in which the only question raised is that the arrest without notice is invalid under O. 21, R. 22, must also he dismissed. The Full Bench case in Rajagopala Ayyar v. Ramanujachariar, which was relied on by the appellant's advocate in support of the contention that the order of arrest was void as no notice was issued to him, as required by R 22. does not support his contention, as the order of reference expressly excepts cases where the omission to issue notice is due to the fact that Sub-R. (2) of R. 22 has been applied as it has been in the present case.

It is also argued that, if the view taken by the District Judge that the order does not amount to a decree is wrong the appeal must be allowed and the case remanded to the lower appellate Court. That would no doubt be necessary in a case where any question of fact has to be investigated. But in this case, if the decision is clearly right in law, there is no need to send the case back, because it may have been based upon a debatable point of law.

The question whether the order amounts to a decree and is, therefore, appealable was also argued before me on both sides. The order passed is no doubt one which falls within the terms of Sect. 47 as an order relating to the execution of the decree. But it is not an order relating to the execution of the decree which amounts to a decree as defined in Sect. 2, Sub-sect. 2 of the Civil Procedure Code. The order to have the force of a decree must not only relate to a question which falls within Sect. 47, but it must also determine the rights of the parties, with regard to any matter in controversy between them, as regards the decree. There are many orders passed under Sect. 47 which though they relate to execution are mere interlocutory orders which do not determine any rights but regulate the procedure as regards the steps which may be taken in aid of the execution of the decree. It could not be the intention of the legislature to make every such order appealable as a decree. This point is considered by Mukerjee, J., in Srinivas Prosad Singh v. Kesho Prosad Singh(2), wherein the authorities bearing on the question are considered by that learned judge. The conclusion come to by him is that “it is not every interlocutory order passed in the course of execution proceedings, even though it may decide any point of law which may arise incidentally, is a decree but it must be an order which must determine the rights of the parties in controversy in the execution proceedings.” I respectfully think that this is the right view. Otherwise as pointed out by the learned judge, “every order in the course of an execution proceeding would be a decree, and appealable as such and at every stage, the execution proceeding would be liable to be arrested by an appeal.” Applying that test in this case, the order for arrest without notice is not a final order and the fact that notice was ordered simultaneously with it shows that it was only an interim order against Which the judgment-debtor had an opportunity of objecting When produced before the court. It is only the order which is passed on his objection, whether it upholds the arrest or sets it aside that will be the final order determining the rights of the parties with regard to the execution of the decree and only such an order will be a decree. The Court evidently was not prepared to release him without his furnishing security, though he pleaded satisfaction of the decree; but before asking for an investigation of that question, he himself applied for stay of further proceedings and the stay was granted and he was released on his furnishing cash security on 2nd November, 1925. The appeal to the lower appellate court was not preferred from any later order passed by the District Munsif, but only from the interim order passed by him on the 26th October, 1925. The further fact which is material to this case is that, after the disposal of the appeal by the lower appellate court on the 8th December, 1925, the execution application and the objection petition put in by the judgment-debtor were taken up for trial by the District Munsif and by his order dated the 11th December 1925 he disposed of the defendant's objection petition on its merits. He held that the alleged satisfaction of the decree could not be set up under O. 21, R. 2, and that the decree holder was entitled to the amount claimed. In that view, he ordered the amount deposited in Court to be paid over to the decree-holder. No appeal appears to have been preferred against that order, but this appeal is preferred by the judgment-debtor on the 16th March 1926 against the order of the District Judge dismissing his appeal against the interim order of the District Munsif passed on 26th October, 1925 on the ground that that order was void as notice to the judgment debtor which was not given was an essential prerequisite.

As I hold that the interim order is not void and that this appeal must be dismissed, it is unnecessary to consider how the adjudication by the District Munsif on the merits of the case will be affected if the decision in this appeal had been that the interim order of arrest without notice is void. This appeal is dismissed with costs.

N. R. R.Appeal dismissed.