(1) On 9-7-1959 Maya Devi, appellant, got a decree for possession by preemption against Telu, respondent. She deposited the preemption money, which was paid to the judgment-debtor. The debtor-holder then obtained the possession of the land in execution of her decree which was, consequently, cosigned to the Record Room as fully satisfied.
(2) On 12-4-1960 Telu, respondent, filed an application under S. 47, Civil Procedure Code, in the Executing Court contending that he was a tenant of the land in dispute and, therefore, the sale in his favour could not be pre-empted and even the decree, that was passed against him, was a nullity and could not be executed under the provisions of S. 17-A of the Punjab Security of Land Tenures Act, 1953.
(3) Smt. Maya Devi, decree-holder, contested this application and pleaded that the Executing Court could not go behind the decree and the application of Telu was not maintainable on that ground; that the decree had been fully satisfied and consigned to the Record Room; that it was a consent decree and the judgment-debtor could not challenge it; and that the judgment-debtor was not holding the land as a tenant at the time of the sale in his favour.
(4) The following preliminary issue was framed by the Executing Court:
(5) The trial Court held that it could go behind the decree in view of the provisions of S. 17-A of the Act and the application filed by the judgment-debtor was maintainable. The trial Judge then framed the following issues:
1. Whether the applicant was a tenant at the date of sale and as such the decree is inexecutable?
2. Whether the judgment and decree is res judicata?
3. Whether the judgment and decree is estopped from filing the application?
(6) Aggrieved by the decision of the Executing Court, the decree-holder went in appeal to the Senior Subordinate Judge, Karnal. Before him, a preliminary objection was raised on behalf of the judgment-debtor that the appeal being against an interlocutory order was not maintainable. The learned Judge held that the order of the Executing Court did not amount to any adjudication of any right in dispute between the parties and, therefore, was not appealable and the decree-holder could challenge the same by way of a revision petition to the High Court. He dismissed the appeal and also observed in his order that the trial Judge should go into the question and determine as to what was the effect of the decree having been consigned as fully satisfied. It is against this order that the present appeal has been filed by the decree-holder.
(7) Learned counsel for the appellant contended that the Senior Subordinate Judge was wrong in holding that no appeal lay against the order of the Executing Court in this case. According to him, the determination of any question within S. 47, Civil Procedure Code, was a 'decree' as given in S. 2(2) of the Code of Civil procedure and was, consequently, appealable. Learned counsel for the respondent, on the other hand, submitted that the determination of all question under S. 47, Civil Procedure Code, did not come within the expression 'decree'. Only those questions, which conclusively determined the rights of the parties, would fall within the definition of the word 'decree'.
(8) After hearing the counsel for the parties, I am of the view that there is substance in the submission of the learned counsel for the respondent. It was held in a Full Bench decision of Lahore High Court in Barkat Ram v. Bhagwan Singh, AIR 1943 Lah 140-
'It is not correct to say that every order passed in execution proceedings is a 'decree' within the meaning of S. 2(2) and, therefore, appealable.
The rule of ejusdem generis applies as much to associated words in one sentence as to terms or phrases appearing in parts of the same section or in different sections in the same chapter.
The expression 'the determination of any question' in the second sentence of S. 2(2) is used ejusdem generis with the phrase 'conclusively determines,' etc. in the first. When the effect of an order is to conclusively determine the rights of the parties with respect to a matter material to the due execution of the decree, the question would be under S. 47 and a decree within S. 2(2) from which an appeal would lie. An interlocutory order in the course of execution proceedings which decides, for instance, a point of law arising interlocutory or otherwise is not a decree within the meaning of S. 2(2).
In a suit in interlocutory order overruling the pleas of want of jurisdiction and limitation would not be a 'decree' and the position is not different in execution proceedings'.
In view of the above authority, we have to find out whether the effect of the order passed by the Executing Court, in the present case, is to conclusively determine the rights of the parties with respect to a matter material to the due execution of the decree. There is no manner of doubt that the objection raised by the decree-holder in the present case, namely, that the Executing Court could not go behind the decree, was a matter material to the due execution of the decree. Now the question is whether the decision given by the Executing Court on this objection conclusively determines the rights of the parties or not. The Executing Court has held that it could go behind the decree and has framed issues on fact.
One of these issues is whether the judgment-debtor was the tenant of the land in dispute or not at the date of sale, so as to attract the provisions of S. 17-A of the Punjab Security of Land Tenures Act, 1953. At present, even after the decision of the Executing Court on the preliminary issue, the execution application filed by the judgment-debtor is still pending and is a live application and, therefore, it cannot be said that the effect of the order of the Executing Court is to conclusively determine the rights of the parties. The matter would only be determined conclusively after the decision on issues on fact is given by the executing Court and then the aggrieved party would be at liberty to file an appeal and challenge its decision on any or all the findings given by it, of course, including the finding given on the preliminary issue. I would, consequently, hold that the order passed by the Executing Court on 18-6-1960 could not be termed as a 'decree' and as such was not appealable.
(9) In this view of the matter, there is no force in this appeal, which is hereby dismissed. In the circumstances of this case, however, I would leave the parties to bear their own costs in his Court.
(10) Appeal dismissed.