Harakh (Decree-Holder) v. Ram Sarup (Judgment-Debtor).

Sir John Edge, C.J:— This is an appeal from an order passed in execution proceedings held under a decree which was made by the Court of Small Causes at Mirzapur. After the decree was made the execution procedings were transferred to the Court of the Munsif of Mirzapur, and it was in those proceedings that an order was made which was appealed against to the District Judge of Mirzapur, against whose order in appeal this appeal has been brought. If this [580] appeal lies it is a second appeal within the meaning of Chapter XLII of the Code of Civil Procedure. Now the suit in question, as I have said, was brought in the Court of Small Causes, being of the nature cognizable by such a Court. The subject-matter of the suit did not exceed Rs. 500. Mr. Kashi Prasad for the respondents here has objected that s. 586 of the Code of Civil Procedure applies, and that the appeal does not lie. On the other hand, Pandit Sundar Lal for the appellant has contended that the decree having been transferred to the Munsif's Court, and the original order which has led to these appeals having been made by the Munsif, we must treat the case as if the original suit was not of the nature cognizable in a Court of Small Causes; that is the argument which he bases on s. 228 of the Code of Civil Procedure. My brother Mahmood only this morning delivered a judgment the principle of which is applicable to this case. We must see, in my opinion, whether the suit was of the nature cognizable by the Court of Small Causes, and whether the amount or value of the subject of that suit did or did not exceed Rs. 500. In my opinion my brother Mali mood was right. S. 586 prohibits a second appeal in the execution of a decree in a suit referred to in s. 586, just as much as it prohibits a second appeal from the decree in that suit. I cannot read s. 228 as Pandit Sundar Lal reads it. It would, in my opinion, be an absurdity to hold that the decree in a Small Cause Court suit passed by a Court of Small Causes must, after it has been transferred to a Munsif's Court for execution, be regarded as a decree in a suit which was not of the nature of suits cognizable in a Court of Small Causes. I am of opinion that this appeal does not lie, and that it should be dismissed with costs.

Mahmood, J.:— I am entirely of the same opinion. The difficulties which arose in my mind were stated by me in my order of the 9th August, 1888, whereby this case was referred to a Bench of two Judges. The learned Chief Justice has already referred to the judgment which was delivered by me this morning in the case of Nazar Husain v. Kesri Mal(1), and the reasons which I gave [581] there are in full accordance with the view expressed by the learned Chief Justice in this case. The appeal, therefore, did not lie on account of the nature of the original suit falling within the purview of s. 586 of the Code of Civil Procedure. The transfer of a decree under s. 223 of the Code could not alter the nature of the suit, nor is there anything in s. 22S to render a decree or an order passed in execution thereof of a different nature to what it was before the transfer. The learned Chief Justice's order dismissing the appeal is therefore the only one which could be passed.

Appeal dismissed.