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Behari Lal-ram Charan Vs. Badri Pershad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All129a
AppellantBehari Lal-ram Charan
RespondentBadri Pershad
Excerpt:
.....him in realizing the amount from defendants 1 to 3, then the plaintiff will be entitled to realize the amount, or any balance due to him from defendants 4 and 5. 2. in the partition suit defendants 4 and 5 were given a decree for a sum of money against defendants 1 to 3 and defendants 4 and 5 proceeded to execute their decree and attached the whole immovable property of defendants 1 to 3. defendants 1 to 3, sold their property privately for rs. 4. notices were served upon defendants 4 and 5, but they failed to appear and the proceedings were taken against them ex parte. ' 11. it has been urged that, if the order is not appealable, we should treat the appeal as an application in revision, but in the circumstances of this case, we see no reason to treat the appeal like a revision......1 to 3 and defendants 4 and 5 proceeded to execute their decree and attached the whole immovable property of defendants 1 to 3. defendants 1 to 3, sold their property privately for rs. 25,000 and plaintiff-appellant applied for rateable distribution. the execution court alloted rs. 12,000 to the plaintiff-appellant, the balance being allotted to defendants 4 and 5 and to other creditors,3. on 19th january 1929, the appellant applied to the execution court, cawnpore, for a transfer certificate to proceed against the money which had been deposited in favour of defendants 4 and 5 in the court at fatehpur. badri prasad, defendant 4, had already sold his share in the decree and the application was for the attachment of the share of dwarka prasad, defendant 5 only.4. notices were served upon.....
Judgment:

King, J.

1. The appellant is a decree-holder who obtained a decree for money on 8th August 1928 against five judgment-debtors. The judgment-debtors-were divided into two parties, Nos. 1 to 3 forming one party and Nos. 4 and 5 the other party. Before the passing of this decree there had been a partition between the five defendants, and it was decided in the partition suit that defendants 1 to 3 would be liable for the debt due to the appellant. For that reason the Court, although passing the decree against the five defendants, made an order that the plaintiff (who is now the appellant before us) should at first try to realize the amount from defendants 1 to 3, and defendants 4 and 5 should help him in realizing the amount from them; but in case he fails to realize all the amount from defendants 1 to 3, and defendants 4 and 5 fail to help him in realizing the amount from defendants 1 to 3, then the plaintiff will be entitled to realize the amount, or any balance due to him from defendants 4 and 5.

2. In the partition suit defendants 4 and 5 were given a decree for a sum of money against defendants 1 to 3 and defendants 4 and 5 proceeded to execute their decree and attached the whole immovable property of defendants 1 to 3. Defendants 1 to 3, sold their property privately for Rs. 25,000 and plaintiff-appellant applied for rateable distribution. The execution Court alloted Rs. 12,000 to the plaintiff-appellant, the balance being allotted to defendants 4 and 5 and to other creditors,

3. On 19th January 1929, the appellant applied to the execution Court, Cawnpore, for a transfer certificate to proceed against the money which had been deposited in favour of defendants 4 and 5 in the Court at Fatehpur. Badri Prasad, defendant 4, had already sold his share in the decree and the application was for the attachment of the share of Dwarka Prasad, defendant 5 only.

4. Notices were served upon defendants 4 and 5, but they failed to appear and the proceedings were taken against them ex parte. An order of transfer was made and the appellant's decree was sent to Fatehpur for execution.

5. On 6th April 1929, Badri Prasad, defendant 4, applied to the Court at Cawnpore to set aside the order of transfer, on the ground that the appellant was bound under the terms of the decree to execute his decree against defendants 1 to 3, if possible, and was not entitled to proceed against the property of defendants 4 and 5, unless and until he had entirely exhausted his remedies against defendants 1 to 3. An affidavit was filed by defendants 4 and 5 showing that defendants 1 to 3 still had moveable property in their possession. The Court below, acting under Section 151, Civil P.C., cancelled the order of transfer. This order cancelling the transfer is the order which is now under appeal before us. The order laid down that the decree-holder must first proceed to realize the balance of his decretal money from the defendants 1 to 3 and, if he is unable to realize his money from them, then alone he can proceed against defendants 4 and 5.

6. A preliminary objection has been taken that no appeal lies. It is contended for the appellant that the order which forma the subject-matter of this appeal, is an order passed by the execution Court under Section 47, Civil P.C., and it determines a question arising between the parties to the suit, in which the decree was passed, and the question relates to the execution of the decree. Therefore, under Section 2 (2), the order is appealable as a decree. It must be conceded that, if the words 'the determination of any question within Section 47' are construed in their widest sense then the determination by the execution Court of any question arising between the parties to the suit and relating to the execution of the decree, would amount to the determination of a question within Section 47 and would be appealable as a decree. On this interpretation the order in question would be appealable as a decree.

7. It is contended by the learned advocate for the respondents that it is not every order under Section 47 which is appealable. An order to be appealable must be an order which finally or conclusively determines a question at issue between the parties relating to the execution of a decree. The order now under appeal does not conclusively determine the question whether the decree-holder is entitled to execute his decree against defendants 4 and 5, but merely lays down the mode in which the decree shall be executed, viz. that recourse must be had to the property in the hands of defendants 1 to 3 in the first instance and, if the decree-holder is unable to realize his decree money from such property, then he is entitled to proceed against the property of defendants 4 and 5. The order amounts to a temporary stay of execution against defendants 4 and 5. As there is no conclusive determination regarding the decree-holder's right to proceed against defendants 4 and 5 the order does not amount to a decree and is not appealable as a decree, In our opinion, there is much force in this contention. We think that the word determination' in Section 2 (2) must be read in the sense of a conclusive determination. In other words, the determination must have the characteristics of a 'decree' as defined in the first sentence of Section 2 (2). We cannot believe that it was the intention of the legislature that every order of every description (including interlocutary orders) passed by an execution Court, determining any question at issue bet-wean the parties in relation to execution of a decree, should be appealable as a decree. The learned Counsel for the appellant asks us to put this wide interpretation upon the language of the statute, but we consider it must of necessity be construed in a more restricted sense, and the context in which the words 'the determination of any question within Section 47' occur justifies us in restricting their meaning.

8. Several rulings of this Court can be cited in support of our view. If we are to accept the appellant's contention, it would follow that every order passed by the execution Court relating to the execution of a decree, as for instance, an order staying execution, would be appealable. It has however been expressly held in two cases decided by Division Benches of this Court that orders staying execution or rejecting stay of execution are not appealable. We refer to the rulings in Husain Bhai v. Belto Shah A.I.R. 1924 All. 808 and Mangat Rai v. Babu Ram : AIR1929All85 . We may also refer to the ruling in Alimuddin v. Govind Prasad, : AIR1927All208 , in which it was held that no appeal lies against an order fixing the estimated value of the property sought to be sold in proceedings under Order 21, Rule 66. These rulings all take the view that it is not every determination of a question within Section 47 which is appealable as a decree. -In two rulings it was expressly hold that orders staying execution are not appealable as decrees. Those rulings are specially in point as the order now in question amounts to an order staying execution against defendants 4 and 5 until certain conditions have been fulfilled.

9. We have been referred to rulings of other High Courts in which a very wide meaning has been given to 'the determination of any question within Section 47' and some authority is to be found for the appellant's contention, but we do not find any case decided by this Court which is of any material assistance to the appellant. We prefer to follow the rulings of this Court which we have cited above.

10. In our view the order under appeal did not conclusively determine any question at issue between the parties relating to the execution of the decree, but merely decided the mode in which the execution should proceed. In our opinion, such an order is not appealable as a 'decree.'

11. It has been urged that, if the order is not appealable, we should treat the appeal as an application in revision, but in the circumstances of this case, we see no reason to treat the appeal like a revision.

12. We accordingly dismiss the appeal. Parties will bear their own costs.


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