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Bava C. Gopalaswami Mudaliar Vs. Sri Tyagarajaswami Devasthanam by Its Executive Officer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1948Mad43; (1947)2MLJ235
AppellantBava C. Gopalaswami Mudaliar
RespondentSri Tyagarajaswami Devasthanam by Its Executive Officer
Cases ReferredRama Rao v. Sreeramamurthy
Excerpt:
- - a preliminary objection was taken on behalf of the respondent that an appeal lay against the order and if this objection is upheld there can be no doubt that this civil revision petition must fail and the appeal would lie to the district judge, east tanjore. the learned judge held that the question that arose between the parties related to the execution of the decree and therefore satisfied the requirements of section 47 of the code of civil procedure. such an order would clearly come within the meaning of 'decree' as defined in section 2(2), civil procedure code......that no appeal lay against an order allowing an amendment of an execution petition. the learned judge held that the question that arose between the parties related to the execution of the decree and therefore satisfied the requirements of section 47 of the code of civil procedure. but the order in question did not satisfy the definition of ' decree ' in section 2(2) of the code of civil procedure, because there was no final adjudication conclusively determining the rights of the parties. according to the learned judge the court's decision was in the nature of a finding and the appeal therefore was incompetent in the sense that it was premature, because, if the court had gone further and attached the property, the judgment-debtor would have the right of preferring an appeal.3. the view.....
Judgment:

Rajamannar, J.

1. This is a civil revision petition in which the holder of a decree in the Court of Small Causes, Madras, which was transferred for execution to the Court of the District Munsiff, Tiruvarur, applies to revise the order of the District Munsiff, dismissing his application to amend his execution petition. A preliminary objection was taken on behalf of the respondent that an appeal lay against the order and if this objection is upheld there can be no doubt that this civil revision petition must fail and the appeal would lie to the District Judge, East Tanjore.

2. Mr. Sundaralingam for the petitioner relies upon the ruling in Beerankutty v. Ameth Mammu : (1936)71MLJ256 to support his contention that the order dismissing his application for amendment is incidental and interlocutory and therefore an appeal was incompetent. In that case Venkatasubba Rao, J., held that no appeal lay against an order allowing an amendment of an execution petition. The learned Judge held that the question that arose between the parties related to the execution of the decree and therefore satisfied the requirements of Section 47 of the Code of Civil Procedure. But the order in question did not satisfy the definition of ' decree ' in Section 2(2) of the Code of Civil Procedure, because there was no final adjudication conclusively determining the rights of the parties. According to the learned Judge the Court's decision was in the nature of a finding and the appeal therefore was incompetent in the sense that it was premature, because, if the Court had gone further and attached the property, the judgment-debtor would have the right of preferring an appeal.

3. The view of the learned Judge that an order made under Section 47 would not be appealable if it was interlocutory in the sense that it allowed the execution petition to proceed appears to me to be untenable in view of the decision of the Bench in Rama Rao v. Sreeramamurthy : AIR1936Mad801 . It was there held that an order disallowing the plea that the execution petition was barred by limitation and adjourning the subsequent proceedings to a future date was an appealable order. The decision of the Division Bench has been also followed in subsequent decisions.

4. Even assuming that the test laid down by Venkatasubba Rao, J., in the above case were to be applied to the present case, I think it should be held that the order in question was appealable because the order definitely negatived the right claimed by the decree-holder which was the subject-matter of the amendment petition. There was therefore a final adjudication conclusive as regards the Court expressing it and determining the rights of the parties. It is as if a relief claimed by the decree-holder in execution had been finally refused to him. Such an order would clearly come within the meaning of ' decree' as defined in Section 2(2), Civil Procedure Code.

5. The Civil Revision Petition is therefore incompetent and is dismissed with costs.


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