(1) The two sons and wife of the judgment debtor in O.S. 430 of 1960 are the appellants in this second appeal. O.S. 430 of 1960 was filed by the respondent herein against the father of the present appellants 1 and 2. A decree was passed against the father on 6-9-1960. The decree-holder took out execution in E.P. 1189 of 1962 on 31-10-1962 against the legal representatives of the judgment debtor, as the judgment debtor died after the passing of the decree. The legal representatives of the judgment debtor, appellants 1 to 3, filed E.A. 668 of 1963 alleging that the decree against their father was obtained by fraud and collusion and that the decree is not valid and executable. In July 1963 the appellants herein filed E.A. 1245 of 1963 praying for conversion of their application E.P. 668 of 1963 into a suit. The trial Court directed in the conversion. But on appeal by the decree-holder the lower-appellate court set aside the order of the executing court and refused conversion. This C.M.S.A. is against the order refusing conversion passed by the lower appellate court.
(2) Mr. G. N. Chari, learned counsel for the appellants raised two contentions. He submitted that an appeal against an order passed under S. 47(2), C.P.C. is not maintainable and therefore the order of the lower appellate Court is without jurisdiction. Secondly he submitted that the lower appellate court was in error in interfering with the discretion exercised by the trial court in converting the petition into a suit. Learned counsel in support of his submission that an order under S. 47(2) directing conversion of a petition into a suit is not appealable relies on a decision of this court in Ramanuja Naicker v. Solaiappa Naicker, : AIR1931Mad270 . In that case, a petition for conversion of an application into a suit under S. 47(2) was dismissed by the Subordinate Judge. There was an appeal preferred against the order dismissing conversion of the petition into a suit. The District judge though aware of the fact that there was no appeal against the said order, granted permission to convert the application into a suit. The High Court held that the decree in so far as it directed the conversion of the petition into a suit was wrong. In the course of his judgment, the learned Judge observed as follows:
'I doubt whether the learned Judge had any jurisdiction to set aside the order of 5th September 1924. There could be no appeal from it and the learned Judge had no power of revision. In any case I think the learned Judge should not have interfered with the order of the Subordinate Judge of 5-9-1924, nor was it a case in which he ought to have, of his own accord, made an order under S. 47(2)'.
From a reading of the above passage it cannot be said that the learned Judge has specifically held that no appeal lies against any order under S. 47(2). The learned Judge expressed a doubt whether the District Judge has jurisdiction to set aside the under of the trial court. This is because there was no appeal before the District Judge. The learned Judge proceeded to state that in any event the District Judge should not have interfered with the order of the Subordinate Judge. The above extract of the judgment would show that the learned Judge has not specifically decided that there is no appeal against an order under S. 47(2). I find considerable difficulty in holding that no appeal lies against an order passed under S. 47(2), for S. 2(2) C.P.C. which defines 'decree' provides that 'it shall be deemed to include the determination of any question within S. 47'. Thus a determination of any question within S. 47 is deemed to be a decree and is appealable. The definition was not brought to the notice of the learned Judge. In the circumstances, I am unable to agree with the contention of the learned counsel that the decision in : AIR1931Mad270 has specifically held that the appeal lies against an order under S. 47(2).
On merits learned counsel submitted that he sought to have the petition converted into a suit as his contention was that the promissory note that was executed by the judgment debtor was in pursuance of a fraud and is not binding and the decree is not binding on the legal representatives. It is unnecessary to go into the merits of this contention. The executing court on the allegations came to the conclusion that this is a fit case for converting the petition into a suit. S. 47(2) C.P.C. provides that the court may subject to any objection as to limitation or jurisdiction, treat a proceeding under S. 47 as a suit. It cannot be said that the exercise of the jurisdiction by the trial court is erroneous. The reasons given by the lower appellate court for interfering with the order converting the petition into a suit by the executing court are not sustainable. The lower appellate court has attempted to discuss the merits of the petition which is unnecessary for the purpose of deciding whether the conversion of the petition into a suit is right or not. The respondent would not be prejudiced by the conversion for whatever grounds which he may have to urge he will be entitled to urge them in the suit.
(3) In the result I set aside the order of the lower appellate court dismissing the petition for converting the petition into a suit and restore the order of the trial court. There will be no order as to costs. Leave refused.
(4) Appeal allowed.