1. This is an appeal arising out of certain execution proceedings. A decree, which was more than three years old, was put in execution and notice was served on the judgment-debtor to show cause why it should not be executed. He filed written objections admitting certain payments made out of Court and yet pleading that the application was barred by time. On the date fixed for the hearing of objections, he did not appear. The Court passed the following order:
“Objector absent. Objection dismissed for default.”
2. From this order the judgment-debtor appealed to the lower appellate Court, which came to the conclusion that, even though the judgment-debtor was absent, the Court ought to have Considered the plea of limitation on its merits and should have disposed of it. Instead of deciding the point of limitation itself as it was urged by the judgment-debtor, the lower appellate Court thought that an opportunity should be given to the decree-holder to show cause, if he can, that his application was within time. The case was accordingly remanded for disposal according to law.
3. The decree-holder urges that no appeal lay to the lower appellate Court, which, therefore, had no jurisdiction to set aside the order of the first Court. A preliminary objection is raised that, if no appeal lay to the lower appellate Court, no appeal lies to this Court. This objection, in my opinion, has no force. The lower appellate Court has assumed jurisdiction and passed an order on appeal. A second appeal would, therefore, lie. In any case, if no appeal lay to the lower appellate Court, it has acted on an assumed jurisdiction, and I would have power in revision to revise that order.
4. The substantial point in the case is whether an appeal lay from the order passed by the execution Court. An order passed in execution cannot be appealable merely because, it fulfils the conditions laid down in S. 47. In order to be appealable, it must fall within the definition of decree in S. 2, sub-cl. (2). If this were not the correct interpretation of the section, the result would be that every order passed in the execution department, for instance a refusal to adjourn the case, would become automatically appealable, which of course is not the law. In order to be appealable the order must amount to a formal expression of adjudication, which conclusively determines the rights of the parties with regard to all controversial matters in suits (and includes the determination of any question within S. 47, but does not include any order of dismissal for default).
5. If objections are filed and there is adjudication inter partes with regard to the points of controversy, an appeal would lie; but S. 2, sub-Cl. (2)(b), expressly exempts an order of dismissal for default. Such orders are not decrees, nor have they been made appealable orders.
6. It follows, therefore, that no appeal lay to the lower appellate Court.
7. It has been contended before me that the expression “order of dismissal for default” refers to dismissal of suits for default. I am not prepared to put such a narrow meaning to this expression. The order of the execution Court was certainly an order dismissing the objection for default. It, therefore, cannot be called a decree so as to be appealable. In this view of the matter, no appeal lay to the lower appellate Court, and that Court had no jurisdiction to entertain the suit accordingly set aside the order passed by the lower appellate Court and restore the original order passed by the first Court. It is unnecessary for me to state what remedy the judgment-debtor now has against the order of dismissal for default. The question of the want of jurisdiction was, however, not raised before the lower appellate Court. It is raised for the first time in this Court. I, therefore, direct that the parties should bear their own costs of the appeal in the lower appellate Court and in this Court.
8. Order set aside.
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