1. This appeal arises out of an application for execution of an order of the Subordinate Judge, 1st Court, Hooghly, dated the 19th August, 1943. This order was made in favour of the Commissioner of Partition in a suit for partition. The order is in these terms:
“The Plaintiff and Defendants were repeatedly asked to pay but did not pay to the Commissioner. The Commissioner may execute the Court's order against the Plaintiff and Defendants to realise his dues.”
2. The learned Subordinate Judge has dismissed the Commissioner's application for execution. Under sec. 36 of the Code of Civil Procedure, the provisions of this Code relating to the execution of decrees shall, so far as they are appli- cable, be deemed to apply to the execution of orders, the matters of procedure laid down in Or. 21 of the Code of Civil Procedure for execution of decrees will, so far as applicable, apply to execution of orders, which are not decrees. The Commissioner has appealed to this Court against the order rejecting his application for execution.
3. A preliminary objection was taken by the learned Advocate on behalf of the Respondents as to the maintainability of the appeal. This preliminary objection must prevail. The proceedings for execution of the order in question do not come under sec. 47 of the Code of Civil Procedure, as a question relating to execution, discharge, or satisfaction of a decree does not arise in this case. Further this question does not arise between the parties to the suit. The learned Advocate for the Appellant relied upon a decision of this Court in the case of Chandra Kumar De v. Kusum Kumari Ray(1). In that case, however, the Court did not consider the question whether the order related to a question between the parties to the suit. On the other hand a decision of the Allahabad High Court rather goes to indicate that an appeal against an order refusing to execute an order passed in favour of the Commissioner is not appealable. We are therefore of opinion that the present appeal is incompetent.
4. The learned Advocate for the Appellant thereafter applied before us for treating the memorandum of appeal as a petition for revision in this case. There is no ground for revision under sec. 115 of the Code of Civil Procedure, The result is that this appeal is dismissedm, but there will be no order as to costs in this appeal.
5. No order is necessary on the connected Rule.
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