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Sayyed Usman Saheb and ors. Vs. Vegisena Sivaramaraju and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberLetters Patent Appeal No. 40 of 1947
Judge
Reported inAIR1950Mad463
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 47, 144 and 151 - Order 43, Rule 1
AppellantSayyed Usman Saheb and ors.
RespondentVegisena Sivaramaraju and ors.
Appellant AdvocateG. Balaparameswari Rao ; and Venkata Rao, Advs.
Respondent AdvocateP. Somasundaram ; and D. Narasaraju, Advs.
DispositionAppeal allowed
Cases ReferredChikkanna v. Perumal
Excerpt:
civil - restitution order - sections 2 (2), 47, 144 and 151and order 43 rule 1 of code of civil procedure, 1908 - district munsiff's court ordered for restitution of money under section 151 - lower court entertained appeal against order - whether order appealable - court passed order under section 151 by exercising inherent power - power can be exercised in very rare cases where rights of parties do not admit doubts or disputes - in present case suit was wrongly decreed - order for restitution of money justified - order not appealable - lower court not justified in entertaining appeal. - - and must be found, if at all, elsewhere, we may clear the ground by observing that it is now well established that the power of the court to order a refund or restitution is not confined to the.....viswanatha sastri, j.1. c. m. s. a. no. 37 of 1946, c. r. p. no. 822 of 1945 and c. r. p. no. 149 of 1946 all arose oat of c. m. p. no. 846 of 1944 in o. p. no. 57 of 1927 on the file of the district munsif's court, amalapuram, and were all dismissed by govindarajachari j. who, however, granted leave to appeal in c. m. s. a. no. 37 of 1946 from which this letters patent appeal has been filed.2. the facts are these. on llth october 1922 viswanatharaju created a simple mortgage over his lands in favour of two brothers, venkataraju and sooraparaju for rs. 2500/- repayable in eight annual instalments with interest at rs. 1-0-6 per mensem. sometime later, the hypotheca was sold to sayeed oosman, the original appellant in the letters patent appeal since dead, and now represented by his legal.....
Judgment:

Viswanatha Sastri, J.

1. C. M. S. A. No. 37 of 1946, C. R. P. No. 822 of 1945 and C. R. P. No. 149 of 1946 all arose oat of C. M. P. No. 846 of 1944 in O. P. No. 57 of 1927 on the file of the District Munsif's Court, Amalapuram, and were all dismissed by Govindarajachari J. who, however, granted leave to appeal in C. M. S. A. No. 37 of 1946 from which this Letters Patent appeal has been filed.

2. The facts are these. On llth October 1922 Viswanatharaju created a simple mortgage over his lands in favour of two brothers, Venkataraju and Sooraparaju for Rs. 2500/- repayable in eight annual instalments with interest at RS. 1-0-6 per mensem. Sometime later, the hypotheca was sold to Sayeed Oosman, the original appellant in the Letters Patent appeal since dead, and now represented by his legal representatives. Sayeed Oosman paid several instalments of principal and interest during the years 1925 to 1927 and deposited in the District Munsif's Court of Amalapuram a sum of Rs. 997/- being the balance of the mortgage money due according to him, and also filed O. P. No. 57 of 1927 dated 8th December 1927 under Section 83, T. P. Act praying for necessary action to be taken under that section. Suraparaju, one of the mortgagees, did not appear on notice or express his willingness to receive the money deposited, with the result that O. P. No. 57 of 1927 was dismissed and the sum of Rs. 997/- deposited into Court continued to remain there as the property of Sayeed Oosman. One Akkubhotlu obtained a simple money decree in O. S. No. 171 of 1929 against Venkataraju, one of the two mortgagees and attached a sum of Rs. 498-8 0 being a moiety of the money lying in Court deposit in O. P. No. 57 of 1927, as the money of his judgment-debtor. Sayeed Oosman was not given notice of the attachment, and Venbataraja's pleader stated that he had no objection to it. On 6th September 1929, a sum of Rs. 498 8-0 out of the amount in Court deposit was paid to Akkhu-bhotlu in part satisfaction of his decree. Mote than 12 years after this payment and after the death of Akkubhotlu and Venkataraju, Sayeed Oosman filed I. A. No. 1140 of 1941 on 13tb November 1941 for the return of the Bum of Rs. 997/- deposited by him in Court in O. P. No. 57 of 1927. Half of the amount had already been paid by the Court to Akkubhotlu the been holder in O. S. No. 171 of 1929 and the balance of BS. 498-8-0 alone was ordered to be paid to Sayeed Oosman. On 19th August 1944, Sayeed Oosman filed C. M. P. No. 846 of 1944 which has given rise to this Letters Patent appeal fez a direction that the sum of Rs. 498-8 0 which had been paid out by the Court to the decree-holder in O. S. No. 171 of 1929 should be ordered to be repaid to him either by the legal representatives of Akkubhotlu who were impleoded as respondents 4 to 10 in C. M. P. No 846 of 1944 or by the legal representatives of Venkataraju who were impleaded as respondents 1 and 2 and Sooraparaju who was originally impleaded as respondent 3 but subsequently given up. To complete the narration of facts, it may be stated that Venkataraju's sons instituted O. S. No. 223 of 1942 on the file of the District Munsif's Court, Amalapuram, claiming a sum of Rs. 410/- as due for the principal and interest of the last instalment of the mortgage dated llth October 1922 and alloging inter aha that the sum of Rs. 498-8-0 which had been paid out of the Court deposit to Akkubhoiln, the credit of Venkataraju was liable to be adjusted to the prior instalments of the mortgage debt leaving the last instalment of the principal and interest alone outstanding. The mortgage suit was decreed.

3. The District Munsif of Amalapuram held that the sum of Rs. 997/- deposited in O. P. No. 57 of 1927 remained the property of Sayeed Oosman, that neither Yenkataraju nor his creditor Akkubhotlu had any right to proceed against the fund, that the payment of a moiety of the said sum to Akkubhotlu was made under a mistake of the Court and that it was the duty of the Court in the exercise of its inherent powers to direct the representatives of Akkubhotlu to repay the amount erroneously paid over to him by the Court. Against this order of the District Munsif Akkubhotlu's legal representatives, respondents 4 to 10 in the lower Court, preferred C. R. P. No. 822 of 1945 to this Court and an appeal A. S. No. 39 of 1945 to the Court of the Subordinate Judge of Amalapuram, which reversed the decision of the District Munsif and dismissed C. M. P. No. 846 of 1944 on the ground that the remedy of Sayeed Oosman, if any, was only by way of a suit and not by an application under S. 144 or S. 151, Civil P. C, By a supplemental judgment, the Subordinate Judge overruled the plea that the order of the District Munsif purporting to be passed in the exercise of his inherent power under S. 151, Civil P. C., was not appealable. Against the judgment of the Subordinate Judge, Sayeed Oosman preferred C. M. S. A. No. 37 of 1946 to this Court and a C. R. P. No. 149 of 1946 in the alternative. Govindarajachari J. who heard the appeal and the two civil revision petitions aforesaid held that an appeal lay to the lower appellate Court and a second appeal to this Court from the order in C. M. P. No. 846 of 1944 relying on certain decisions which will presently be referred to. On the merits he held in deference to authority and despite his own inclination to the contrary, that the inherent power of the Court to order, restitution could not be exercised in the circumstances of the case. He dismissed C. R. p. No. 149 of 1946 preferred by Sayeed Oosman and C. R. P. No. 822 of 1945 preferred by the representatives of Akkubhotlu in view of his decision that the order of the first Court was appealable. He gave leave to file an appeal under Clause 15, Letters Patent against his judgment in C. M. S. A. No. 37 of 1946.

4. On this L. P. Appeal, Mr. Balaparames-wari Rao, the learned advocate for the legal representatives of Sayyed Oosman, argues that the order of the District Munsif directing a refund of the money in the exercise of his inherent power was not open to appeal and that the decisions relied on by the learned Judge were inconclusive and in any event, erroneous, He also seeks to support the order of the trial Court on the merits and relies on the reasoning of Govindarajachari J, himself in his judgment now appealed against.

5. The order of the District Munsif in C. M. P. No. 846 of 1944 purports to be passed in the exercise of his inherent power under S. 151, Civil P. C. though reference is made to S. 144, Civil P. C. in the petition. It is now common ground that the case is not governed by that section. No decree or order has been reversed or varied in the present case and no payment has been made pursuant to the decree or order reversed or modified. It is equally clear that the case does not fall under Section 47, Civil P. C. for Sayeed Oosman whose money was wrongly applied in payment of the simple money decree in O. S. No. 171 of 1929 was neither a party to the suit nor a representative of such a party. The right of appeal, therefore, could not be based on Sections 47 and 144, Civil P. C. and must be found, if at all, elsewhere, We may clear the ground by observing that it is now well established that the power of the Court to order a refund or restitution is not confined to the cases specified in Section 144, Civil P. C. and that even in cases not falling within the section the Court possesses the inherent power to order restitution. See Jai Berham v. Kedar-nath, 2 pat. 10: A. I. R. 1922 P. C. 269 which refers to the oft quoted observations in Rodgir v. Comptoir D'Escompte De paris, (1871) L. R. 3 P. C. 465 : 40 L. J. P. C. l and Palaniappa v. Ramanathan : AIR1934Mad320 . In Ratnaji v. Ramakrishnayya : AIR1937Mad95 , Venkataramana Rao J. observed:

'It is a well settled principle of law that where a Court has wrongly paid money to a person not entitled thereto it has not only the power but it has also its duty to recover It from him.'

Similar observations are to be found in J. P. Rego v. Ananthamathi, I. L. R. (1942) Mad. 949: A. I. R. 1943 Mad. 472. At the same time it has been held that this power need not always be exercised on an application and that the par-ties may be referred to a regular suit if there are competing equities or complicated questions not appropriate for summary adjudication on an application. See Ummaji Javichand Firm v. Subbarao : AIR1945Mad108 .

6. Is an order for restitution or refund appealable even though the order does not fall under Section 47 or Section 144, Civil P. C., but is based only on Section 151, Civil P. C. Govindarajachari J. holds that the order would be appealable relying on the decisions of this Court in Akshia Pillai v. Govindarajulu, 47 M. L. J. 549 :

A. I. R. 1924 Mad. 778 and Govinda Padayachi v. Velumurugayya Chettiar, 64 M. L. J. 586 : A. I. R. 1933 Mad. 399.

7. It is a common place of our law that the right of appeal does not exist in the nature of things but mast be expressly given by the statute. See Minakshi v. Subramania, 11 Mad. 26 : 14 I. A. 160 and Rangoon Botataung Co. Ltd. v. The Collector of Rangoon, 40 Cal. 21: 39 I. A. 197. The Civil Procedure Code provides for an elaborate system of appeals in Rs. 96, 104 and Order 43, Rule 1. Decrees and Orders falling within Section 2, Clause 2, Section 47, Section 104 and orders enumerated in Order 43, Rule 1, Civil P. C. are all expressly made appealable. Before the recent amendment of Order 41, Rule 23 and Order 43, Rule 1 (u) Civil P. C. this Court had consistently held that an order of remand passed under the inherent power of the Court was not appealable though an order of remand made under the specific statutory provisions contained in Order 41, Rule 23 was appealable under Order 43, Rule 1, Clause (u). See Athappa v. Ramanathan, (1920) 37 M. L. J. 536: A. I. R. 1920 Mad. 898, Radhakrishna Rao v. Venkata. Rao, 48 Mad. 713 : A. I. R. 1925 Mad. 229, Mallayya v. Veerayya, : AIR1927Mad335 , Karuppanna Pillai v. Ethumalai Pillai : AIR1927Mad859 , Sundararaja, lyer v. Sathiana-than : AIR1927Mad1190 and Kakamma v. Chandrasekhara : AIR1929Mad205 . There was a frequently recurring controversy as to whether an order of remand was passed under Order 41, Rule 23, Civil P. C., or under the inherent power of the Court, the appellant maintaining the former position and the respondent contending for the latter. This Court cut the Gordian Knot by exercising its rule-making power and altering Order 43, Rule 1 (u) so as to give a right of appeal against all orders of remand.

8. Even with reference to the appeal ability of orders for refund or restitution passed under Section 151, Civil P. C. opinion in this Court has not been uniform. In Palaniappa v. Ramanathan, 57 Mad. 849: A. I. R. 1934 Mad. 820 it was held by Curgenven and Pakenham-Walsh JJ. that no appeal lay against such an order. In Ummaji Javichand Firm v. Subbarao : AIR1945Mad108 , the Court allowed an appeal from an order purporting to grant restitution or refund under Section 151, Civil P. C. and held that the proper remedy of the applicant was to file a suit for the purpose. No objection appears to have been taken as regards the maintainability of the appeal. If the order was open to appeal by virtue of Section 47, Civil P. C. then, obviously, no suit could be filed for the relief. All that could be said is, that such an obvious point would not have escaped the notice of the learned counsel or the Court in that case. In J. P. Rego v. Ananthmathi, I. L. R. (1942) Mad. 949: A. I. R. 1942 Mad. 472 and Ratnaji v. Ramkrishnayya : AIR1937Mad95 it was again assumed without discussion that an order for restitution under Section 151, Civil P. C., not falling within Section 47, Civil P. C. was appealable. There is, however, a decision of King J. in Bali Reddi v. Nagi Reddi : AIR1941Mad564 where the learned Judge expressly held that a party ordered to make restitution in the exercise of inherent powers bad a right of appeal against the order. It does not appear from the meagre report of that case whether the person ordered to make restitution under Section 151, Civil P. C. was himself a party to the suit or his representative within the meaning of Section 47, Civil P. C. in which case the appeal would have lain as a matter of course. King J. followed the decision of a Division Bench in Ayyasami lyer v. Sivakki Ammal, 56 Mad. 909 : A. I. R. 1933 Mad. 780 which held that an order passed in the exercise of the inherent power of the Court for enforcing a security bond against the surety, was appealable even though the case did not fall within the language of Section 145, Civil P. C. The Court purporting to rely on the decision of the Judicial Committee in Raghubar Singh v. Jai Indra Bahadur Singh, 42 ALL. 158 : A. I. R. 1919 P. C. 55 held that the surety himself, in such a case, should be deemed to be party to the suit in which the order for execution was made against him, and therefore, entitled to appeal against it. This is really extending the rule indicated in Section 145, Civil P. C., and the right of appeal given by that section to analogous cases falling within Section 151, Civil P. C. in Akshia Pillai v. Govindarajulu, : AIR1924Mad778 referred to in the judgment under appeal. Jackson J, held that an order of Court setting aside an execution sale in the exercise of its inherent powers, on the application of the judgment-debtor, was open to second appeal. The case obviously fell within Section 47, Civil P. C. as the dispute related to the execution, discharge or satisfaction of the decree and arose between the parties to the suit. The decision of Govinda Padayachi v. Velu Murugayya Chettiar, : AIR1933Mad399 also related to the appealability of an order refusing to confirm an execution sale in the exercise of the inherent powers of the Court. The appellant was the decree-holder purchaser and he filed a second appeal and a revision petition in the alternative. Pakenham-Walsh J. held that as there was a civil revision petition, it was immaterial whether an appeal lay or not, though he referred to the judgment of Jackson J., in Akshia Ptllai v. Govinda-rajulu Chetti, (1924) 47 M. L. J. 649 : A. I. R. 1924 Mad. 778 with apparent approval. The views of the other High Courts are not uniform as stated by King J. in Balireddi v. Nagireddi : AIR1941Mad564 and, it is unnecessary to encumber this judgment with a discussion of the decisions of the various other High Courts. In this connection it has to be remembered that for an adjudication on the rights of the parties to constitute a decree with, in the meaning of Section 2, Clause 2, Civil P. C. it must have been given in a suit and a suit has to be instituted by the presentation of a plaint. See Hansraj Gupta v. Official Liquidators of Dehra Dun etc., Co. and Rajagopala Ghettiar v. H. R. E. Board, Madras : AIR1934Mad103 . We are, therefore, unable to agree with Govindarajacbari J. when he formulated the reason for entertaining an appeal from an order of restitution under Section 151, Civil P. C. in these terms:

'The principle behind the recognition of the appeal-ability of orders under Section 151, Civil P. C., is that where a Court in the exercise of its inherent power makes an adjudication which conclusively determines the rights of the parties and that adjudication is not given in a suit under Section 47 or under Section 144, Civil P. C., it would only be fair and in the fitness of things that the party whose rights are adversely affected should have a right to reagitate the matter in appeal and second appeal.'

9. If it is held that an order for restitution passed under Section 151, Civil P. C., and not falling within the ambit of Section 47 is not appealable, it may be necessary to define the limits within which the inherent power to direct a restitution should be exercised. This point has, however, not been fully argued before us by the learned counsel. If the matter is one falling also within Section 47, Civil P. C., the parties cannot be referred to a regular suit and the question must be decided on an application with the consequent right of appeal and second appeal. But in all other oases where the rights of third parties ate involved, it would be proper to refer the parties to a suit so that the right of appeal might be available to them from the decree passed in such a suit. Where the Court acts under Section 144 or under Section 151, Civil P. C., the summary remedy by way of testitution should ordinarily be limited to matters done under the decree or as a consequence of the decree which is subsequently varied or reversed. The decision of the Privy Council in Jai Berham v. Kedarnath, 2 Pat. 10 : A. I. R. 1922 P. C. 269, itself indicates the limitations of the rule. The present case itself is a good example of the inequity of enforcing restitution in all cases where one man's money has been paid over to another under an erroneous order of Court, irrespective of other considerations or consequences. Sayeed Oosman filed the present C. M. P. No. 846 of 1944 for restitution nearly 15 years after the money had been paid over to the attaching creditor, Akkubhotlu. The execution of Akkubhoklu's decree in O. S. No. 171 of 1929 became barred in 1941 under Section 48, Civil P. C. The mortgagees have sued and obtained a decree in O. S. No. 223 of 1942 for the last instalment of the mortgage money, professing to give credit to the sum paid over by the Court to Akkubhotlu as and for a prior instalment. It is possible that on account of this payment of RS. 498.8-0 to Akkubhotlu the attaching decree-holder, the mortgagees did not file their suit earlier claiming the prior instalments of the mortgage money whose recovery became barred in 1942. Sayeed Oosman even if he had sued in 1944 for the recovery of the sum claimed to be payable to him would have been met by the bar of limitation. It is contended for the appellant that an application like the present is not governed by any of the articles of the Limitation Act, not even by Article 181 and that restitution should be ordered irrespective of the lapse of any length of time. We cannot agree with this contention.

10. The decisions of this Court which recognise the existence of the inherent power of restitution also recognise that Courts should not redress one injustice by perpetrating another and that the rights of innocent third parties should) not be jeopardised by the exercise of that power. See the decisions in Rajarao v. Ananthanara-yanan Chetti, : AIR1922Mad228 ; J. P. Rego v. Ananthamathi, I.L.R. (1942) Mad. 949: A. I. R. 1942 Mad. 472 and Ummaji Javichand v. Subbarao : AIR1945Mad108 . Govindarajachari J., in the judgment now under appeal felt bound by these decisions in spite of his own. opinion to the contrary. We, however, respect-fully agree with the principle of the above decisions and are of opinion that the inherent power of the Court to direct payment of money by way of restitution should not be exercised if the rights of innocent third parties would irreparably be injured thereby and it is impossible to put them in the position which they occupied before the money was paid over to them by the Court, though erroneously, as shown by subsequent events.

11. Having regard to the importance of the questions involved and the conflict of opinion in this Court as regards the appealability of an order for restitution passed under Section 151 Civil P. C., we direct that the papers in this case be placed before His Lordship the Chief Justice to be heard by a Full Bench if so directed. Judgment of the Fall Bench.

12. Satyanarayana Rao J. -- As there is a conflict of decisions in this Court on the question whether a right of appeal lies against an order for restitution passed under Section 151, Civil P. C., myself and Viswanatha Sastri J., directed that this appeal should be heard by a Full Bench of three Judges and the appeal therefore comes up for final disposal.

13. On 11th October 1922, one Viswanatharaju executed a simple mortgage over his lands for a sum of Rs. 2500/- borrowed by him from two brothers, Vegiaena Venkatarju and Sooraparaju. Under the terms of the bond, the debt was repayable in eight annual instalments commencing from llth October 1928. Subsequently, the mortgage property was sold by Viswanatharaju to one Sayeed Oosman subject to the mortgage. The purchaser Sayeed Oosman paid some instalments for the principal and interest due under the mortgage and on 8th December 1927 filed O. P. No. 57 of 1927 District Munsif's Court, Amalapuram under Section 88, T. P. Act after depositing a sum of Rs. 997/- the sum ascertained to be due to the mortgagees. On this application notice was issued to the mortgagees ; but Yen-kataraju remained ex parte. The petition was dismissed on 18th January 1928 as the mortgagees did not consent to accept the deposit in full discharge of the mortgage. The amount deposited by Sayeed Oosman, namely, the sum of Rs. 997/- continued to lie in deposit in Court notwithstanding the dismissal of the O. P.

14. One G. Akkubhotlu who obtained a simple money decree in O. S. No. 171 of 1929 against Venkataraju for a sum of Rs. 2478-0-6, attached in execution of the decree half the amount in deposit as belonging to Venkataraju, his judgment debtor. A sum of Rs. 498-8-0 representing the half share of Yenkataraju in the deposit amount was withdrawn from Court by Akkubhotlu, the decree-holder, on 26th September 1929. In the execution proceedings in O. S. No. 171 of 1929 in which this sum was withdrawn by Akkubhotlu no notice was issued to Oosman, the person who deposited the amount. Yenkataraju, the judgment-debtor, however, said that he had no objection for the amount being paid to the decree-holder.

15. Oosman was absent from India and returned from Rangoon only in 1941. On 13th November 1941, Oosman filed I. A. No. 1140 of 1941 in O. P. No. 57 of 1927 for return of the amount of Rs. 997/- deposited by him in Court in that O. P. To this application he impleaded as parties the sons of Yenkataraju, as Yenkataraju died by that time, as respondents 1 and 2, and Sooraparaju, as respondent 3. He was allowed to withdraw the balance of the amount then in deposit, namely, Rs. 498-8-0, and according to the allegations of Oosman in those proceedings, he was not aware until that moment that the other half of Rs. 498-8.0 was withdrawn from Court by Akkubhotlu, a creditor of Venkataraju. Thereafter, on 19th August 1944, Oosman filed C. M. P. No. 846 of 1944, out of which the present proceedings arise, for a direction that the amount of Rs. 496-8-0 should be refunded to him either by the legal representatives of Akkubhotlu who were impleaded as respondents 4 to 10 to that petition, Akkubhotlu having died by that time, or from respondents 1 and 2 to the petition, the sons of Venkataraju. He also impleaded, as respondent 3, Sooraparaju but subsequently gave him up.

16. In 1942, the sons of Yenkataraju instituted O. S. No. 223 of 1942, in District Munsif's Court, Amalapuram for recovery of a sum of Rs. 410/- as due for principal and interest of the last instalment under the mortgage bond of llth October 1922. In the plaint in that suit reference was made to the amount of Rs. 498-8-0 which was paid out of the deposit into Venkataraju's creditor Akkubhotlu and it was also stated that it was adjusted towards the prior instalment due under the mortgage deed. The mortgage suit was decreed.

17. This application C. M. P. No. 846 of 1944, was contested before the District Muusif on various grounds, but the District Munsif over-ruling the objections, held that the money really belonged to the petitioner Oosman and the payment by the Court to Akkubhotlu of that amount as belonging to Yenkataraju proceeded under a mistake and that it was the duty of the Court in those circumstances to direct the representatives of Akkubhotlu to refund the amount under the inherent powers of the Court under Section 151, Civil P. C.

18. Against the order of the District Munsif respondents 4 to 10, the legal representatives of Akkubhotlu, preferred an appeal to the Sub-Court, Amalapuram in A. S No. 39 of 1945 and also filed a revision petition, C. R. P. No. 882 of 1945 in this Court, presumably as they entertained a doubt that the appeal to the Sub-Court may not be competent. The learned Subordinate Judge reversed the decision of the District Munsif and dismissed C. M. P. No. 846 of 1944, holding that the remedy of Sayeed Oosman was only by way of suit and not by an application either under Section 144 or 181, Civil P. C. The learned Subordinate Judge definitely held that the application did not fall within Section 144, Civil P. C.

19. Against the judgment of the Subordinate Judge there was a civil Miscellaneous SecondAppeal No. 37 of 1946 filed by Ooaman in this Court and an alternative C. R. P. No. 149 of 1946. The Civil Miscellaneous Second Appeal, C. R. P. No. 149 Of 1946 and C. R. P. No. 822 of 1945 preferred against the original order of the District Munaiff Court by respondents 4 to 10 were heard by Govindarajachari J. He held on the merits that there was inherent power of the Court to order restitution, but, in the circumstances of the present case, it was not proper to exercise the discretion by directing restitution under Section 151, Civil P. C. He also held that the appeal to the lower appellate Court was competent in view of the decisions of this Court. In the result he dismissed the civil Miscellaneous Second Appeal and C. R. P. No. 149 of 1946 preferred by Sayyed Oosman and also C. R. P. No. 822 of 1945 preferred by the representatives of Akkubhotlu as a result of his finding that the appeal to the lower appellate Court was competent. He granted leave to file appeal under Clause 15 of the Letters Patent against the decision in C. M. S. A. No. 87 of 1946 to Sayeed Oosman.

20. Against the decision of Govindarajachari J. this L. P. Appeal 40 of 1947, was filed by Sayeed Oosman himself and during the pendency of the appeal he died and his legal representatives were brought on record and they continue the appeal.

21. If the appeal to the Sub-Court was incompetent, the further questions considered by Govindarajachari J. in the civil miscellaneous second appeal need not be gone into and there-fore we thought it convenient to hear arguments in the first instance on the question of the main-tainability of the appeal against the order of the District Munsif Court. Section 144, Civil P. C. has no application to this case, as no decree is varied or reversed. The original petition was dismissed and the money continued to lie in deposit in Court and Akkubhotlu attached the money as belonging to Yenkataraju and withdrew the money. It is now found that the order of the Court in directing attachment of the money as money belonging to Venkataraju, proceeded on an erroneous assumption and there, fore refund of the money should be directed. In fact, before us, it was not contended that the order falls under Section 144, Civil P. C. The Court clearly purported to act under Section 151 and not under Section 144, Civil P. C. of course if the Court purported to act under Section 144, Civil P. C., though erroneously, the legal representatives of Akkubhotlu would have a right of appeal to the Sub-Court on the principle of a catena of decisions of this Court which lay down that if the Court purports to act under a section of the code which gives a right of appeal, though the order may not be justified under that section, the aggrieved party would have a right of appeal as if the order was validly passed under that section. Sea the latest decision in Somasundramma v. Seshagiri Rao : AIR1947Mad378 .

22. The question therefore must be considered on the footing that the order of restitution passed by the District Munsif Court is one which falls under Section 151, Civil P. C. Decisions have recognised inherent powers of Courts to order restitution in cases not falling under Section 144, Civil P. C. See Rodger v. Comptoir D' Escompte de Paris, (1871) L. R. 3 P. C. 465: 40 L. J. P. C. 1. Palaniappa v. Ramanathan : AIR1934Mad320 and Ratnaji v. Ramkrishnayya : AIR1937Mad95 a right of appeal should be conferred by a statute or by some authority equivalent to a statute and does not exist as an inherent right. This proposition is well established by the decisions of the highest tribunal which followed the principle recognised under decisions in England. vide, Minakshi v. Subramania, 11 Mad. 426 : 14 I. A. 160 and Rangoon Botatoung Co. Ltd., v. The Collector of Rangoon, 40 cal. 21: 39 I. A. 197. Under the Code, right of appeal is provided by Section 96 from every decree passed by any Court exercising original jurisdiction. Sections 104 and Order 43, Civil P. C. provide appeals from orders. Sections 2(2) defines a 'decree' as including an order rejecting a plaint, orders under Section 47, Civil P. C. and orders under Section 144, Civil P. C, The first part of the definition is confined to a conclusive determination by a Court of the rights of the parties with regard to all or any of the matters in controversy in suit. It follows from this definition that a decree may be a conclusive determination of the rights of parties with regard to matters in controversy in suit; it may be an order rejecting a plaint or an order falling under Section 47 or Section 144, Civil P. C. It excludes from its purview appealable orders and also an order of dismissal for default. In order therefore to confer a right of appeal, an adjudication must be either a 'decree' in the sense defined by the Code or an order' which falls under Section 104 or Order 43, Civil P. C. As an order for refund or restitution under Section 151, Civil P. C. is not an order within Section 144 and is not otherwise included either in the definition of the decree or the appealable orders enumerated in Section 104 and Order 43, there is no right of appeal against such an order. An application not being an order in a suit it would not be a decree; a suit should be instituted by a plaint and not by an application. So, even if the order determines conclusively the matters in controversy between the parties, as it is not an order passed in a suit, it won't be a decree within the meaning of the first part of the definition of decree; see Hansraj Gupta v. Official Liquidators of Dehara Dun etc. Co. and Bajagopala Chettiar v. H. R. E. Board, Madras : AIR1934Mad103 . On a plain reading of the provisions of the Code relating to the appeals there-fore, the order now in dispute is not appealable. [23] The question may now be examined in the light of the decisions in some of which a right of appeal was assumed while in others it was negatived. There is only one decision of our Court which expressly considers the point and that is a decision of a single Judge, King J. in Bali Reddi v. Nagi Reddi : AIR1941Mad564 to which reference will be made presently. Varada Ramaswami v. Venkataratnam, : AIR1922Mad99 is a case in which the lower Courts purported to direct the return of the money under Section 144, Civil P. C. The Bench held that on the facts of the case the order was not one falling either under Section 47 or under Section 144, Civil P. C. The applicability of S. 151 was adverted to by the Subordinate Judge, but the matter was not considered whether on the facts an order for restitution could be granted under that section. The order directing restitution was therefore set aside and the application was remanded. No objection was taken to the maintainability of the appeal and even if such were taken, in view of the clear statement by the learned Judges at p. 474 of the report that the lower Court purported to act under Section 144, Civil P. C., the right of appeal could be justified on the principle of the decision in Somasundaramma v. Seshagirirao : AIR1947Mad378 which of course follows earlier decisions of this Court. Akshia Pillai v. Govindarajulu Ghetti, : AIR1924Mad778 is a decision of a single Judge, Jackson J. That case arose out of an application to set aside a sale. It was held that a Court could set aside a sale even under its inherent powers even though the conditions of Order 21, Rule 90 are not satisfied, and that against an order directing the sale to be set aside under the inherent powers of the Court, an appeal would lie. The dispute however was between the parties to the suit and it was held that an appeal would be competent under Section 47, Civil P. C. On the merits however the learned Judge differed from the view of the District Judge that there was a violation of a previous final order and therefore allowed the appeal and restored the order of the District Munsif. This decision therefore is not an authority for the position that if an order of restitution is passed under Section 151 of the Code between persons who are not parties to the suit and the order does not fall under Section 47, an appeallies against the order. The decision of Curgeveu and Walsh JJ. in Palaniappa v. Ramanathan : AIR1934Mad320 shows that the learned Judges held that an appeal in cases falling under Section 151 was incompetent and the learned Judges dismissed the appeal but interfered with the order in the exercise of revisional jurisdiction under Section 116, Civil P. C., as an alternative civil revision petition was also filed in the case. The decision in Akshia Pillai v. Govindarajnlu Chetti, : AIR1924Mad778 was fol-lowed by Walsh J. in Govinda Padayachi v. Velumurugayya Chettiar, : AIR1933Mad399 which related to an order refusing to confirm a sale in execution. The learned Judge held that an appeal and a second appeal was competent against the order. The auction-purchaser in that case was the decree-holder and the dispute related to a sale which was set aside at the instance of the judgment-debtor under Section 151 of the Code. There was also an alternative revision petition before the Court and the learned Judge observed ;

'As there is a civil revision petition it is immaterial whether an appeal lies; but Jackson J. held in Akshia Pillai v. Govindarajulu Chetti, : AIR1924Mad778 that if a Court is approached in execution under Section 151 and passes an order of this kind there is an appeal and a second appeal and in this very case he directed the civil revision petition to be put up with the appeal.'

There are two decisions of Yenkataramapa Rao J. in Ratnaji v. Ramakrishnayya : AIR1937Mad95 and Radhabai Maharanee v. Jagannadha Naidu : AIR1937Mad694 in which an appeal against an order for restitution falling under Section 151 of the Code was maintained without any objection. In both the cases the application was treated as one falling under Section 151, Civil P. C. The point whether an appeal lies was not raised and decided. Wads worth J. considered the question in Bamireddi v. Satyam, (1936) 48 M. L. W. 773: A. I. R. 1936) Mad. 636 in a case which was within the purview of Section 47, Civil P. C. The learned Judge treated the application as one falling under Section 151 and not under Section 144, but as it was between parties to the suit the learned Judge held that the order was a 'decree' and that under Section 47, Civil P. C. it was appealable. At p. 775 the learned Judge observed :

'The matters seems to me to be covered by the provisions of Section 47, Civil P. C. Granted that an order under the inherent powers of the Court is not per se appealable, if that order is in fact an order passed on an application made by one of the parties as against another party and relating to the execution, discharge or satisfaction of the decree it falls under Section 47 and for that reason is appealable. Section 47 provides only for the procedure and the forum whereby a decision is to be reached. It does not give the powers by virtue of which the Court decides; these powers have to be sought in other provisions of the code. They may be derived from Section 144; they may be derived from Section 151. If an order for restitution made under Section 144 is appealable because it also falls under Section 47, similarly an order under Section 151 for something analogous to restitution made as between the parties would also fall under Section 47 and be subject to an appeal. A similar reasoning is found in decisions of this Court reported in Akshia Pillai v. Govindarajulu, : AIR1924Mad778 and Govinda Padayachi v. Velu Murugayya Chettiar, : AIR1933Mad399 and it has been held in the case of Somasundaram v. Chockalingam, 40 Mad. 780 : A. I. R. 1917 Mad. 185 that Section 47, Civil P. C. covers all oases of restitution. I must therefore hold that an appeal lay to the Subordinate Judge from the order of the District Munsif declining to order restitution.'

This decision therefore divides the orders of restitution under inherent powers of the Court into two categories, (l) between the parties to the suit; and (2) between parsons who are not so parties. In the former case, the orders would fall under Section 47, Civil P. C., and as an order Section 47 is a 'Decree' within the meaning of Section 2(2) of the Code, there is a right of appeal against such an order. The next decision is the direct case in which the question was considered by King J. in Balireddi v. Nagireddi : AIR1941Mad564 . An objection was specifically taken that the appeal to the lower appellate Court was incompetent. The learned Judge applied the principle of Ayyasmi lyer v. Sivakkiammal, 56 Mad. 909 : A. I. R. 1933 Mad. 780 which relates to a case of a surety and which held that even though a case of a claim against a surety may not be covered by Section 145, Civil P. C., the jurisdiction to enforce the claim may be treated as one exercised in the suit itself and, therefore, rightly amounts to a decree. This was rested in Ayyasami lyer v. Sivakkiammal, 56 Mad. 909 : A. I. R. 1933 Mad. 780 on the observations of the Privy Council in Rai Raghbur Singh v. Jai Indra Bahadur Singh, 42 ALL. 158 : A. I. R. 1919 P. C. 55. At p. 911 in Ayyasami Aiyar v. Sivakki Ammal, 56 Mad. 909 : A. I. R. 1933 Mad 780 the learned Judge, Venkatasubba Rao J. observed, 'But the very judgment of the Judicial Committee shows that what was contemplated was an order in the suit itself, and the implication is that the surety was dealt with as if he was a party to the suit. Section 145, while it prescribes a remedy against the surety also provides for the surety's remedy by way of appeal. When their Lordships of the Judicial Committee held that there was power outside Section 145 to proceed against the surety, they could not have intended to deprive him of the remedy which he would have had the proceedings been taken under Section 145. Their Lordships point out that the surety was not a party to the suit at the stage of the fixation of mesne profits, that is to say, before the execution commenced. But having regard to their Lordships' decision and the policy underlying S. 145. We must hold that it was not intended that the surety's rights should in this respect be abridged.' This passage in my opinion means that the order against a surety, even though it does not fall under Section 145 is treated as an order passed in the suit and therefore as it determines the rights of the parties must be deemed to be a decree. That principle however has no application to orders of restitution or refund falling under Section 151, Civil P. C. It cannot be treated as an order in a suit so as to attract the definition of 'decree' and confer a right of appeal. King J. observes in Balireddi v. Nagireddi : AIR1941Mad564 'that the proceedings in the present case were analogous to proceedings under Section 144 cannot be doubted.' In his opinion the principle in Ayyasami lyer v. Sivakki Ammal, 56 Mad. 909 : A. I. R. 1933 Mad. 780, applies to an order under Section 151 read with Section 144. It is not clear from the judgment whether the question arose between the parties to a suit to justify a right of appeal under Section 47, Civil P. C. It is difficult to see how an order under Section 151 can be treated as one under Section 144. The proceeding may be analogous to that under Section 144; but unless the statute confers a right of appeal against orders of restitution not falling under S. 144, an appeal would not lie. The judgment is very short and I am unable to agree with the learned Judge that an appeal against an order under Section 151, Civil P. C. is competent because it is a proceeding analogous to a proceeding under Section 144. In J. P. Rego v. Ananthamathi, I. L. R. (1942) Mad. 949: A.I.R. 1942 Mad. 472 a right of appeal was assumed. The decision of Leach C. J. and Shahabuddin J. in Ummaji Javichand firm v. Subbarao : AIR1945Mad108 , is also a case in which an appeal was entertained without objection. These are the decisions of our Court to which reference was made in the course of arguments. In none of these cases except the decision of King J. in Balireddi v. Nagireddi : AIR1941Mad564 , was an objection specifically raised and considered and therefore the decisions cannot be treated as an authority one way or the other. For the reasons already stated, the decision of King J. in Balireddi v. Nagireddi : AIR1941Mad564 cannot be accepted as laying down the law correctly as no reference was made to the fundamental fact that an appeal against an order would not lie unless specifically conferred by statute.

24. Of the decisions of the other High Courts which have been referred, a decision of the Patna Court in Ram Ratan v. Banarsi Lal : AIR1930Pat280 , supports the contention of the appellant that the appeal to the lower appellate Court was incompetent. It was pointed out by Fazl Ali and Dhavle JJ. in that case that an order falling under Section 151 would not be a decree and the order in that case was treated as one falling under Section 47. The question in that case related to a sale of land which was purchased by the decree-holder himself. The sale was subsequently set aside and the judgment-debtor applied for the restoration of possession of the property along with mesne profits. The Munsif dismissed the application so far as it related to mesne profits but on appeal the District Judge vacated the order and remanded the case for deciding the question whether or not the decree-holder had or had not actually obtained possession. Against the order of the District Judge, an appeal was preferred to the High Court and the chief contention before the High Court was whether the appeal to the District Judge was without jurisdiction or not. The appeal was allowed by the High Court on the ground that the order of the District Munsif was not appealable to the District Court. Fazl Ali J. was also of opinion that even though the order was between the parties to the suit, it was not one which would fall under Section 47. To this extent the decision of the learned Judge is opposed to the decisions of our Court and even such an order, according to the learned Judge, was not appealable as it cannot be a decree. The Calcutta High Court has taken the view that such orders are appealable, Gnanada Sundari v. Chandra Kumar : AIR1927Cal285 , even though Mukherjee J. in one of the decisions was of the contrary view. The question was also considered by the Nagpur High Court in Champabai v. Daulatram, I.L.R. 1939 Nag. 350 : A. I. R. 1938 Nag. 326. The view of that Court is analogous to the view taken by Govindarajachari J. in the civil Miscellaneous second Appeal against which this Letters Patent appeal has been preferred. He expressed himself thus:

'The principle behind the recognition of the appealability of orders under Section 151 is that where a Court in the exercise of its inherent power makes an adjudication which conclusively determines the rights of the parties and that adjudication is not given In a suit or under Section 47 or under Section 144, Civil P. C. it would only be fair and in the fitness of things that the party whose eights are adversely affected should have a right to reagitate the matter in appeal and second appeal.'

Nobody disputes that in the fitness of things an aggrieved party should have a right of appeal against an adverse order passed under Section 151, Civil P. C. for restitution which is a proceeding analogous to a proceeding under Section 144. But that right cannot be acquired except under a statute. However unjust it may be, if no remedy is provided to an aggrieved party by way of appeal against such orders, it cannot be assumed that such a party has an inherent right of appeal contrary to decisions of the Privy Council which negative such a right. In Mt. Ghampabai v. Daultram Sharma, I L.R. (1939) Nag. 350:A.I.R. 1938 Nag. 326, the Nagpur Court observes:

'It may readily be conceded that because an order is passed under the inherent powers it does not necessarily become appealable : Narayandas v. Kalyanji , Tatyarao v. Shrikrishna, 31 Nag. L. R. Suppl. 72 : A. I. R. 1936 Nag. 8. If, however, the inherent powers are used to expand a remedy in order to do justice to cover a case not within the exact words of, but within the purpose of a procedural section, the Court is in effect using its inherent powers to act as if the order were made under the section in question, in this case Section 144. In such a case even as justice demanded that one side should be given a remedy, restitution, as if Section 144 applied; so the other side should, as a matter of justice, be allowed the right to appeal that would have existed had Section 144 really applied instead of its being applied by means of a fiction. Some such reason seems to be involved in those cages where orders for restitution passed under the inherent powers have been held appealable. This is not a case where one is purporting to act under Section 144. It Is a case where under the powers conferred by Section 151 the Court is giving a relief as if Section 144 applied though it does not apply. It is clear that two views can be taken upon the subject. We prefer the above view which is consonant with the conclusions arrived at by the Calcutta High Court in Amirannessa v. Karimannessa, A. I. R. 1914 Cal. 692: 22 I. C. 839 and Gnanada Sundari v. Chandra-Kumar : AIR1927Cal285 . ' However inequitable it may be to leave a party without any remedy against an order which is erroneous, the words of the statute cannot be rewritten in the manner suggested in the Nagpur case as the view of the learned Judges practically amounts to including within the purview of Section 144 orders of restitution or refund not directly falling under that section. This, in my opinion, is to legislate and not to interpret the law. We have to interpret the law as it stands however inconvenient it may be or even if such an interpretation leads to unjust or inequitable results. The plain language of the section must be given effect to and cannot be added to or subtracted by judicial interpretation. In Alfred Zahir v. Sirajuddin, A. I. R. 1944 Lab. 165: 216 I. C. 97, Abdur Rahman J. also allowed an appeal without an objection against an order of restitution under Section 151, Civil P. C.

25. None of these decisions has examined the question on principle and they cannot be treated as authorities on the question which we are now called upon to decide. As there is no specific appeal provided under the Code against orders of restitution and refund under Section 151 of the Code, and as an order under that section does not amount to a decree, I am of opinion that the appeal to the sub Court was incompetent. In this view it is unnecessary for me to discuss the merits of the appeal. The result is that the orders of Govindarajachari J. and the Subordinate Judge must be set aside and the Letters Patent appeal and the civil Miscellaneous second Appeal must be allowed with costs throughout. C. R. P. No. 822 of 1945 which was preferred by the legal representatives of Akkubhotlu was however dismissed by Govindarajachari J. as he was of opinion that the appeal to the lower appellate Court was competent. As I have now held that the appeal was incompetent, in the ends of justice I think that that civil revision petition must he restored and must be directed to be posted for disposal in the usual course before a single Judge.

26. Before leaving this case I may observe that it is really inequitable that an order of this description under Section 151, Civil P. C. should not be appealable. I think that this defect may be remedied by framing an appropriate rule giving a right of appeal against such orders. Of course it is not open to grant a further right of appeal against the appellate order but at least one appeal may be provided for by adding a suitable clause in Order 43, Civil P. C. It is for the High Court to consider whether a rule may be so framed as to give at least one right of appeal against orders of this description.

27. Yiswanatha Sastri J.-- The relevant facts have been stated in the order of reference and need not be rehearsed. This Court has consistently taken the view that an order purporting to be passed under an appealable provision of law is open to appeal, though on the facts the order need not have been passed under that provision. In such cases the appellate Court treats the order as having been regularly passed under the appealable provision for the purpose of entertaining an appeal there from and that purpose only: vide, Abdul Rahim v. Ganapathi, 23 Mad. 517: 10 M. L. J. 305; Lachmanan v. Ramanathan, 28 Mad. 127: 14 M. L. J. 436; Muthiah Chettiar v. Govindadoss, 44 Mad. 919 : A. I. R. 1921 Mad. 599 ; Raman Nambiar v. Raviram Naman : AIR1934Mad484 , Somasundarama v. Seshagirirao : AIR1947Mad378 . In other words, the right of appeal is determined by what the Court purported to do and not by what the Court should have done and if a Court purported to act under an appealable provision of law, an appeal would lie against that order even though the Court ought to have acted under some other provision which is not appealable. Otherwise, the usurpation of jurisdiction and powers by Subordinate Courts under the guise of acting under statutory provisions giving a right of appeal might go unchecked. Mr. Narasaraju, the learned advocate for the respondent, contends that this right of appeal has been extended much further by the decisions of this Court and that an order for restitution passed under Section 151, Civil P. C., would-in every case be appealable. It has no doubt been held by this Court that orders passed in the exercise of the inherent powers of the Court in a matter arising between the parties to the suit or their representatives and relating to the execution, discharge or satisfaction of the decree are appealable. Orders for restitution passed under the inherent powers of the Court have been held to be appealable if they also fall within Section 47, Civil P. C. See Akshia Pillai v. Govindarajulu Chetti, (1933) 47 M. L. J. 549 : A. I. R. 1924 Mad. 778, Govinda Padayachi v. Velu Murugayya Chettiar : AIR1933Mad399 ; Rami Reddi v. Satyam, 43 M. L. W. 773 : A. I. R. 1936 Mad. 636; Somasundaram v. Chockalingam, 40 Mad. 780 : A. I. R. 1917 Mad. 185.

28. The Judicial Committee in Jai Berham v. Kedarnath, 2 Pat. 10: A. I. R. 1922 P. C. 269 and this Court on several occasions, has held that even in a case not falling within the language of Section 144, Civil P. C., the Court can in the exercise of its inherent power, order restitution if the case is otherwise a fit one for the exercise of such power: J. P. Rego v. Ananthamathi, I. L. R. (1942) Mad. 949: A. I. R. 1942 Mad. 472, Rajarao v. Anantanarayanan, : AIR1922Mad228 , Govindappa v. Hanumanthappa, 38 Mad. 36: A. I. R. 1916 Mad. 745, Palaniappa v. Ramanathan : AIR1934Mad320 , Ratanji v. Ramakrishnayya : AIR1937Mad95 . It is unnecessary for the purposes of this case to pursue the controversy on which different opinions have been expressed as to whether Section 144, Civil P. C., applies to a case where a decree is set aside not as a result, of a direct appeal or revision from that decree-but as a result of separate proceedings and as to whether Section 144 applies to a case where it is only an order made by the executing Court and not a decree passed in the suit that has been reversed or modified : Subbarayudu v. Sashasani, 40 Mad. 299 : A. I. R. 1917 Mad. 293, Parvathi Ammal v. Elayaperumal, A. I. R. 1922 Mad. 70 : 66 I. C. 216, Sudarsana Rao v. Gopalarao, 1933 M. W. N. 641, Venkataraju v. Suryanarayana, I. L. R. (1943) Mad. 411: A. I. R. 1943 Mad. 248, Palaniappa v. Ramanathan : AIR1934Mad320 , Macha Koundan v. Kottora Koundan, 59 Mad. 202: A. I. R. 1936 Mad. 50 and Ummaji Javichand Firm of Guntur v. Sub-barao : AIR1945Mad108 .

29. Mr. Narasaraju pleads for an analogical extension of the right of appeal even to cases of orders for restitution passed in the exercise of the inherent powers of the Court under Section 151 but not falling under Section 47 or Section 144, Civil P. C. Reliance is placed by him in support of this contention on certain decisions which will presently be referred to. The argument in favour of this view has nowhere been better expressed than by Stone C. J. in Champabai v. Doulatram Sharma, I. L. R. (1939) Nag. 350: A. I. R. 1938 Nag, 326. The learned Judge observed:

'It may readily be conceded that because an order is passed under the inherent powers, it does not necessarily become appealable. If, however, the inherent powers are used to expand a remedy in order to do justice to cover a case not within the exact words of, but within the purpose of a procedural section, the Court is in effect using its inherent powers to act as if the order were made under the section in question, in this case Section 141. In such a case even justice demanded that one side should be given a remedy, restitution, as if Section 144 applied. So the other side should, as a matter of justice, be allowed the right to appeal that would have existed, had Section 144 really applied instead of its being applied by means of a fiction. Some such reason seems to be involved in those cases where orders for restitution passed under the inherent powers have been held appealable.'

The same view was taken by the Calcutta High Court in Gnanada Sundari v. Chandrakumar : AIR1927Cal285 , Sasikanta Acharju v. Jalil Baksh : AIR1931Cal779 , Gopal Lasaar v. Harihar Mookerjee : AIR1948Cal37 , though not without dissent; see Taraknath v. Panchanan : AIR1937Cal152 . The Allahabad High Court has held, but not with one voice, that an appeal would not lie against an order passed under Section 151, Civil P. C., though the order related to the execution, discharge or satisfaction of the decree and a fortiori against an order for restitution passed under Section 151, Civil P. C.: Bagavati Prasad v. Collector of Etah : AIR1944All218 , Allahabad Theatres Ltd v. Ram Sajiwan Misra : AIR1949All730 . The Patna High Court has taken the view that no appeal would lie against an order for restitution passed in the exercise of the inherent powers of the Court: Ram Ratna v. Banarsilal, : AIR1930Pat280 . In this Court, it was held in Palaniappa v. Ramanathan : AIR1934Mad320 that no appeal lay against an order for refund or restitution of money in the exercise of the Court's inherent power, where the case did not fall under Section 47, Civil P. C. An appeal against such an order has been entertained without any objection being raised to the maintainability of the appeal in J. P. Rego v. Ananthamathi, I. L. R. 1942 Mad. 949 : A. I. R. 1942 Mad. 472, Ratnaji v. Ramakrishnayya : AIR1937Mad95 , Rajarao v. Anantanarayanan, : AIR1922Mad228 and Ramaswami v. Venkataratnam, : AIR1922Mad99 . In Ummaji Jagichand Firm v. Subbarao : AIR1945Mad108 , the Court entertained an appeal against an order for restitution passed in the exercise of the inherent power of the Court but referred the parties to a suit in view of the complexity of the facts and the competing equities in the case. As stated in the order of reference, if the order for restitution was one open to' appeal as coming under Section 47, Civil P. C., a separate suit for the same relief would not lie.

30. There is, however, a direct decision in Balireddi v. Nagireddi : AIR1941Mad564 , where King J. held that if a party is ordered to make restitution under Section 151, Civil P. C., he must have a right of appeal, because the proceedings under Section 151 are analogous to those under Section 144 and an order under the latter provision would be appealable. He followed an earlier decision of this Court in Ayyasami lyer v. Sivakki Ammal,, 56 Mad. 909 : A. I. R. 1933 Mad. 780 where it was held that when a Court acting, not under Section 145, Civil P. C., but under its inherent powers, called upon a surety to carry out the terms of his bond, the right of appeal which the surety would have had under Section 145 if it applied, is not lost to him under Section 151. I am unable to agree with the reasoning of King J. The order against the surety though it did not fall under Section 145, Civil P. C., was treated as an order passed in the suit and as one determining the rights of parties. An order for restitution is not an order in the suit so as to amount to a decree under Section 2(2), Civil P. C., Rajagopala Chettiar v. H. R. E. Board : AIR1984Mad103 . It is one thing to say that a Court has inherent power to order restitution or refund of money acting ex debito justitia even in cases not falling within Section 144, Civil P. C. But it is quite a different thing to say that every such order passed in the exercise of the Court's inherent power is appealable. Section 151, Civil P. C., does not confer any new powers but recognises and preserves the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The Code of Civil Procedure, though elaborate, is not exhaustive; and has not made anticipatory provision for every possible cul-de-sac. Section 151 is a re-cognition of this fact and of the inherent power of the Court, subject to the express provisions' of the Civil Procedure Code to act ex debito-justitia and to do that real and substantial. justice which it should be the aim of all Courts to render. Apart from the provisions of Section 144, Civil P. C., the power to order restitution or refund of money paid out through, an error or mistake of the Court or through fraud or deception practiced upon it, has been recognised to be inherent in Courts, it being their primary duty to take care that their acts do no injury to any of the suitors. A right of appeal to a higher Court from an order of an inferior Court is not like a right to institute a suit of a civil nature which a person enjoys apart from any statutory provision. The right of appeal is a substantive right and not a matter of mere procedure: Colonial Sugar Refining Co. v. Irwin, 1905 A. C. 369: 74 L. J. P. C. 77, Delhi Cloth and General Mills Co. v. Collector of Income-tax . A right of appeal is not a natural or inherent right and is not to be assumed or presumed but must be expressly given by statute or some authority equivalent to a statute. The cases on the point and the relevant provisions of the Code of Civil Procedure have been quoted in the order of reference and need not now be repeated. Courts exercising inherent powers may, and often do, act on the analogy of statutory provisions which, though not applicable iproprio vigore, are nearest in point to the circumstances before them. A Court has, however no inherent power to entertain an appeal from an order of an inferior Court; nor can it extend by analogy, statutory provisions giving a right of appeal in particular cases to analogous oases not falling within those provisions. The statutory provision providing for appeals must be considered to be exhaustive of all the matters which are considered to be fit for appeal by the legislature or rule-making body. There is no provision either in the body of the Code or in Order 43, Rule 1 making an order for refund or restitution passed by a Court in the exercise of its inherent powers appealable. If the order for restitution satisfies the requirements of Section 47, Civil P. C., it might be appealable as if it were a decree. It may be open to the High Court in exercise of its rule-making powers to add to Order 43, Rule 1 a clause giving a right of appeal against an order for restitution made in the exercise of the inherent power of a Court in which event there would be a right of first appeal but not a right of second appeal against such an order. In view of our decision against the appealability of orders for restitution passed in the exercise of the inherent powers of a Court, it is essential that Courts professing to exercise such powers and make orders for restitution, should exercise such powers only in very clear cases where the rights of par-ties do not admit of serious doubt or dispute. In other cases, it is desirable to refer the parties to a separate suit so as to give them a right of appeal. In the present case, the order for restitution having been made under Section 151, Civil P.C. and not being one falling within Section 47, Civil P.C., was not appealable. It follows, therefore, that the lower appellate Court had no jurisdiction to entertain this appeal and that the present Letters Patent appeal should be allowed.

31. I agree with my learned brother Satya-narayana Rao J., in the order that he has made.

32. Raghava Rao J. -- I have had the advantage of perusing the judgments just delivered before preparing my own. I also agree in the order proposed by my learned brother Satyanarayana Rao J., that this Letters Patent appeal should be allowed. I should have contented myself with expressing my concurrence pure and simpliciter in his conclusion, had it not been, firstly for the sense of deference which I entertain for the late Govindarajachari J., whose decision we are overruling and, secondly for the importance of the question raised, which, as I think, is not undeserving of a separate treatment from my own point of view. I shall however state my reasons in as brief a judgment as possible.

33. I may premise by observing that, were the practice of this Court well settled in regard to the question of the appealability of an order like the one with which we are concerned--the order in C.M.P. No. 846 of 1946 in O. P. No. 67 of 1927, District Munsif's Court, Amalapuram --I should feel highly disinclined to disturb any such practice by holding the order in question to be unappealable. The exact state of the authority of case-law in this Court with regard to the appealability of orders under Section 151, Civil P. C., has been carefully analysed, if I may say so with respect, by my learned brother Satyanarayana Rao J., in his judgment just delivered. With that analysis I entirely agree, although I may have to say a few words of my own in the sequel concerning in particular the decision of King J. in Balireddi v. Nagireddi : AIR1941Mad564 , which I cannot at all regard as directly governing the present case. It follows that Govindarajachart J.'s appreciation of the case-law in regard to this point is erroneous and cannot stand.

34. Turning then to principle, as apart from precedent, it seems to me that certain propositions, which are material to the present case, are well-settled, so well-settled indeed, that it would be sheer pedantry to cite authority in support of them. One is that a right of appeal, unlike a right of suit, is not something available at common law to a litigant, but is the creature of statute, which must be made out before it can be resorted to by a litigant. Another is that the right of appeal claimed in respect of an order of Court like the one in the present case must be sought and found within the four corners of the Civil Procedure Code. The third is that appealability does not depend upon the provisions of law quoted by the litigant in his pleading, which may sometimes misquote the relevant provision, bat upon the provision under which the Court, in fact, acts. The substance of the order ought, in other words, to be looked at and not the form of the pleading on which the order is made. What the object and purpose of Section 151, Civil P.C. are has been fully expounded by my learned brother, Viswanatha Sastri J., in his judgment, and a fourth proposition, which can also be enunciated as beyond dispute is that no petition under Section 151, Civil P. C., ought to be entertained by the Court acting ex debito justice in respect of any matter specifically dealt with in the Code in disregard of any of the provisions of law contained therein, or elsewhere. The last and fifth of the propositions is that a civil Court has jurisdiction to try any suit of a civil nature, of which its cognizance is neither expressly nor impliedly barred. None of these propositions was, or could indeed be disputed by the learned counsel for the respondents.

35. The true character of the petition in the present case is that it seeks a refund of money deposited by the petitioner in his petition under Section 83, T. P. Act, since the mortgagees refused to accept the amount in full discharge of the debt due. As pointed out in Gour's work on the Law of Transfer (vol. II, 7th Edn. p. 1363), the petition under Section 83, T. P. Act and the order thereon are not proceedings in a regular suit and the mere direction that the petition shall be verified in the manner prescribed by law for verification of plaints, does not warrant the inference that the order made on it has the force of a decree in a regular suit. It is further observed by the learned author at an earlier page (page 1361) thus:

'The summary jurisdiction possessed by the Court while exercising its powers under the section precludes it from going into the question of the sufficiency of the deposit, if it is not challenged by the mortgagee, nor is it for the Court to construe the mortgage deed and calculate for the parties the amount really due, since no decision given by it can be final, without which its action would be purely officious warranted neither by the terms nor the spirit of the rule. Its chief and only function is that stated in the second paragraph.'

The learned author further proceeds to remark in these terms :

'If the mortgagee receives the money, the Court must pay it over him in full satisfaction of the mortgage and make the mortgage deed over to the mortgagor. If there be any dispute as to the amount due or the person it is payable to, the Court must stay its hand and leave parties to their legal remedies.' The application for refund presented by the appellant in this case was in his original petition under Section 83, T. P. Act, which had been dismissed on account of the refusal of the mortgagees to accept the money deposited in full quit and the application was in rerum nature bound to be as summary as the original petition itself. Any rights which the respondents to the application --not Yenkataraju's legal representatives but Akkibhotlu's--might have to the money on account of what happened subsequently to the petition and its disposal are matters not within the strict purview of such a summary proceeding so that if instead of referring the matter to the machinery of a regular suit, the Court actually directed a refund, the direction was nothing more than a summary adjudication liable to challenge in a regular suit, anyhow, in the absence of any lawful bar to such a suit, or of any lawful ouster of the ordinary civil Court's jurisdiction by reason of some provision of law somewhere which in my opinion, and so far as I can see, there is not. No question of res judicata on account of the order on the application can therefore arise with reference to such a regular suit. The application itself must be regarded as one not barred by any provision of the Code. True, it is not for restitution under Section 144, which specifically deals with restitution but there is inherent power in the Court to order restitution quite apart from that section, as the Privy Council has ruled in Jaiberham v. Kedarnath, 2 pat. 10 : A. I. R. 1922 P.C. 269. Moreover, the application in the present case was for a simple refund of money put into Court to the credit of a proceeding, which later became infruotuous and not for restitution in the strict sense of the term, consequential on the subsequent reversal of an order to which the applicant was a party, for restitution in other words, in the sense of return or restoration of a thing to its owner by way of a reparation for injury done to a suitor by the Court and in discharge of a duty and in exercise of a power inherent in the general jurisdiction of the Court to take care that the act of the Court does no injury to a suitor--the act of the Court in this context meaning not merely the act of a primary Court, or of any intermediate Court of appeal, but the act of the Court judged as a whole from the lowest Court, which entertains jurisdiction over the matter upto the highest Court, which finally disposes of the case. In my opinion, the jurisdiction of the Court of the District Munsif of Amalapuram to entertain the present appellant's application for refund is undoubted and the order of the Court thereon is a summary order equally undoubtedly liable to challenge in a regular suit. In what circumstances an order should be regarded as summary and as capable of such challenge is a matter on which the considerations laid down in Bhagwan Din v. Gir Harsaroop , and applied in Amirthalinga v. Chandrasekhara : AIR1945Mad242 , will have to be borne in mind, One such consideration is that the absence of any provision for an appeal from the statute giving rise to the order is prima facie indication of its summary character. So far with reference to the fourth and fifth of the propositions above stated and the bearing that they have on the question to be decided in the present case.

36. Now turning to the first three propositions, it is to my mind perfectly clear that unless the order in the present case can be shown to be appealable under the relevant provisions of the Code, this appeal must be allowed. The relevant provisions are in Section 96 read with Section 2(2) and Section 104 read with Order 43, Rule l of the Code. The latter set of provisions has obviously no application here. The only question is whether the former has. There again the order cannot obviously be regarded as of the nature of the determination of any question within Section 47 or Section 144. One has only to look at the words of those two sections to find beyond any doubt that the order stands outside their language and that the Court has not acted and cannot have acted under these sections, in the present case, neither in form nor in substance is the order capable of being viewed as an order made under Section 47 or Section 144, Civil P. C. It can only be viewed both in form and in substance as an order under Section 151, Civil P.C. My learned brother, Satyanarayaua Rao J. has also held, applying Rajagopala Chettiar v. H. R. E. Board, Madras : AIR1934Mad103 , that the order cannot be treated as within the first part of the definition of 'decree' in Section 2 (2) being one passed not in a suit, but on an application. The only observation that I wish to make on that part of the reasoning of my learned brother is that, as opined by a Divisional Bench of this Court consisting of Somayya and Yahya Ali JJ. in Ralakotayya v. Nagay-ya : AIR1946Mad509 . There is great force in the view that after the Full Bench decision in Chikkanna v. Perumal, I. L. R. (1940) Mad. 791 : A. I. R. 1940 Had. 474 the decision in the earlier Full Bench case of Eajagopala Chettiar v. H. R. E Board, Madras : AIR1984Mad103 cannot be considered as good law.

37. That being the true position--the position i.e., of unappealability--emerging from the provisions of the statute, the question is whether there is any principle underlying the contrary view adopted by Govindarajachari J. In the words of that learned Judge himself the principle behind the recognition of the appealability of orders under S. 151 is that where a Court in the exercise of its inherent power makes an adjudication, which conclusively determines the rights of the parties and that adjudication is not given in a suit under Section 47 or under Rule 144, Civil P. C., it would only be fair and in the fitness of things-that the party whose rights adversely affected should have a right to re-agitate the matter in appeal and second appeal. This principle assuming it to be sound in view of Chikkanna v. Perumal, I. L. R. (1940) Mad. 791 : A. I. R. 1940 Mad. 474, which according to the opinion of the learned Judges in Balakotayya v. Nagayya : AIR1946Mad509 shakes the authority of Rajagopala Chettiar v. H. R. E. Board, Madras : AIR1934Mad103 , cannot, in my judgment), cover a case like the present of what, as I have already indicated, is only a summary order which is not in the nature of a formal expression of adjudication which, so far as the Court expressing it is concerned, conclusively determines the rights of parties in regard to a. matter in controversy between them. The principle itself is not by any means inherently devoid of merits or open to exception and there is nothing prima facie, fallacious or erroneous about it. It has indeed the support behind it oft the principle of the decision in Chikkanna v' Perumal, I. L. R. (1940) Mad. 791: A. I. R. 1940 Mad. 474, and the obiter dictum of the learned Judges who decided Balakotayya v. Nagayya : AIR1946Mad509 to neither of which, it is true, Govindarajachari J. refers. I cannot go to the whole length, therefore, with my learned brother Satynarayan Rao J., in holding that it is liable to rejection as opposed to Privy Council decisions-like Meenakshi v. Subramaniam 11 Mad. 26: 14 I.A. 160 and Rangoon Botataung Co Ltd. v. The Collector of Rangoon, 40 Cal. 21 : 39 I. A. 197. Possibly the view taken by Govindarajachari J. is, as my learned brother observes, analogous to that of the Nagpur High Court in Mt. Champabai v. Shree Daulatram, I, L. R. (1989) Nag. 350: A.I.R. 1938 Nag. 326. But it is only fair to that learned Judge to observe that the principle enunciated by him, as I apprehend it, is, in its legal basis, however, different from, al-though analogous in its equitable spirit to, the doctrine propounded by the High Court of Nagpur, on which it was that Mr. Narasaraju, the learned counsel for the respondents entirely founded his arguments before us.

38. The raison de'etre of the Nagpur ruling is to be found in the following passage occurring at pp. 353 and 354 of the report in the judgment of Stone C. J., which was the judgment of the Court consisting of himself and Digby J:

'It may readily be conceded that because an order is passed under the inherent powers, it does not necessarily become appealable: Narayandas v. Kalyanji and Tatyarao, v. Shrikrishna, 31 Nag. L. R. Supp. 72: A. I. R. 1936 Nag, 8. If, however, the inherent powers are used to expand a remedy in order to do justice to cover a case not within the exact words of, but within the purpose of a procedural section, the Court is in effect using its inherent powers to act as if the order were made under the section in question, in this case Section 144. In such a case, even as justice demanded that one side should be given a remedy, restitution, as if Section 144 applied; so the other side should, as a matter of justice, be allowed the right to appeal that would have existed had Section 144 really applied instead of its being applied by means of a fiction. Some such reason seems to be involved-ad in those oases where orders for restitution passed under the inherent powers have been held appealable.'

The ruling, as I understand it, comes to this:

that where in the interests of justice the remedy of restitution is expanded in favour of one party beyond Section 144, Civil P. C., by resort to Section 151, Civil P. C., then the other party should equally in the interests of justice have the remedy of appeal, which would hive been available had Section 144, Civil P. C., itself in reality and not the fiction of it been applied. There are three or four fallacies, as I venture to think, lurking in the law so stated. In the first place, resort to Section 151, Civil P. C., for expanding the remedy of restitution provided for by Section 144, Civil P. C., can only be within and not beyond the limits within which that section can function. To hold otherwise would, as my learned brother Satyanarayana Rao J. rightly--if I may say so with respect--put it, be to legislate and not to interpret the law. Such resort is no doubt warranted by the ruling of the Privy Council in Jaiberham v. Kedarnath Marwari, 2 Pat. 10: A. I. R. 1922 P. C. 269, but the corresponding expansion of the scope of Section 151, Civil P. C., is not warranted by any known canon of statutory constructions or by any binding authority. Secondly, the way in which such expansion is sought to be justified is statedly by means of a fiction. This is the first time I have heard of fiction--and I need hardly say I have heard of it with no inconsiderable astonishment--as an element which can legitimately enter into the interpretation of the section of a statute so as to convert an unappealable section into appealable. Besides the exact language of a section as aids to its interpretation, I have certainly heard of its necessary implications and of considerations derived from the purpose of the enactment as disclosed by the preamble, the key to the statute as it is some-times called, or from other sections of the statute, or from the section or sections of a statute in pari materia so on and so forth. I have not however come across any case in which, with respect to an order made under one section the principle has been so clearly enunciated as in the Nagpur case that the fiction can legitimately be entertained that it is an order made under another section, although neither in form nor in substance can the order be treated as one made by the Court acting under that section, in order to discover a right of appeal existing under the latter section, but not provided for by the Legislature with reference to the former. Such a discovery will really be in the nature of an invention tantamount to judicial legislation to which I cannot reconcile myself. Thirdly, it is assumed in the Nagpur ruling that the right of appeal created by importing the fiction is designed to endure the benefit of the party against whom restitution is sought. But there is no reason on principle why if the right of appeal is recognised at all, it should not extend to a case where the relief of restitution is refused as well as to a case where the relief is granted. Fourthly, it does not seem to me to be correct to say that in the cases which have recognised the right of appeal where the order is one not made under Section 114, Civil P. C., but under Section 151, Civil P. C., the reason supposed by the learned Chief Justice of Nagpur is the reason invariably involved. No authority is cited by the learned Chief Justice in support of his statement that that is the reason involved and his supposition, which seems to be rather a prior in character, cannot, even if it is not so, in my opinion, justify his conclusion.

39. There remains for me just to say a word or two about the decision of King J. in Bailed v. Angered : AIR1941Mad564 which, as the head note to the re-port shows, is to the effect that if a party is ordered under Section 151, Civil P. C., to make restitution, he will have a right of appeal from such order. How exactly the question of restitution there arose and fell for decision under Section 151, Civil P. C., is not clear from the judgment, which is a short one. I have called for the papers and found that the claim of restitution there made bears no parity to the claim for refund with which we are concerned here and that the proceeding under Section 151, Civil P. C,, there, is more analogs to a proceeding under Section 144, Civil P. C., than the one here is. There, an interim order of attachment was eventually vacated with the dismissal after notice of a petition for attachment before judgment and the security bond executed by the plaintiff in connection with the interim order stood cancelled. The application out of which the Civil Miscellaneous Second Appeal decided by King J. arose was one filed by the defendants under Sections 144 and 151, Civil P. C., for recovery of the value of the crop cut and removed by the plaintiff on the strength of the interim order personally against the plaintiff, the security bond executed by him having been cancelled as already stated. The application substantially failed before the trial Court after an enquiry into the merits on the question of the truth or otherwise of the removal of the crop by the plaintiff. On appeal taken by the defendants they succeeded. There was a preliminary objection taken by the plaintiff (respondent) to the maintainability of the appeal before the first appellate Court, which was overruled by that Court on the ground that the application, although filed under Sections 144 and 151, Civil P. C., could be treated in substance as an application under Section 145, Civil P. C., for enforcement of the security bond. In second appeal to this Court, one of the points raised in the memorandum of appeal was that no appeal lay to the lower appellate Court, because the application did neither purport to be under, nor in substance attract Section 145, Civil P. C. That point is not dealt with in the judgment of King J. What, in fact, was decided by his Lordship is that Section 151, Civil P.C., read with Section 144, Civil P. C., warranted the appeal to the lower appellate Court, just as in Ayyasami Iyer v. Sivakki Ammal, 56 Mad. 909 : A. I. R. 1933 Mad. 780, Section 151 read with Section 145 warranted the appeal to the High Court. My learned brethren in their judgments point out that unlike in that decision of King J. there existed in Ayyasami lyer v. Sivaki Ammal, 56 Mad. 909 : A. I. R. 1933 Mad. 780, an order passed in the suit itself amounting to a decree under Section 2(2), Civil P. C., and that that decision is wrong for want of adequate analogy with Ayyasami lyerv. Sivakki Ammal, 56 Mad. 909: A. I. R. 1933 Mad. 780. It may however be that it is not altogether unreasonable to suppose that the learned Judge relying as he did on the analogy of the ruling in Ayyasami lyer v. Sivakki Ammal, 56 Mad. 909: A.I.R. 1933 Mad. 780 for arriving at his own decision in the case before him, rightly or wrongly regarded the order with which he was concerned --without in so many terms saying so--as in the nature of a formal expression of a conclusive adjudication of the rights of parties on a matter in controversy between them, although not in a suit. Anyhow, even assuming that between those two oases sufficient similarity exists, I am not prepared to say that any such exists, between them on the one hand and the present case on the other, in which all that we have is a summary order to which the definition of 'decree' even in the extended sense of Chikkanna v. Peru-mal, I. L. R. (1940) Mad. 791: A. I. R. 1940 Mad. 474, cannot possibly apply. Much less am I prepared to accept as sound in principle the doctrine of appeal by an analogical extension adumbrated by King J. in his observations in Balireddi, v. Nagireddi : AIR1941Mad564 to the following effect:

'If a party is ordered under Section 151, to make restitution, he must have a right of appeal. That the proceedings in the present ease were analogous to the proceedings under Section 144 cannot be doubted. The appeal' to the first appellate Court was therefore competent.'

There are just one or two observations which I should like to make, before closing, on the suggestion of my learned brethren about the desirability of the High Court in the exercise of its rule-making power adding a suitable clause to Order 43, Rule 1, Civil P.C., giving a right of appeal against orders under Section 151, Civil P. C. After all, there can only be one appeal and no further secured by such an amendment of the rule and the question in that view for consideration will be whether the provision for an appeal may not deprive an otherwise summary order under Section 151, Civil P. C., of its character as such and stand in the way of a re-agitation of the matter in a separate suit. Whether a suit remedy with two appeals ordinarily and sometimes possibly a third under the Letters Patent, or a single appeal remedy will be more desirable in such case will be the mattes for consideration. Of course, where the order under Section 151, Civil P. C., happens to be in the nature of a formal expression of a conclusive adjudication on any of the matters in controversy. I am rather anxious that the conflict between Rajagopala Chettiar v. H. R. E. Board, Madras : AIR1934Mad103 and Chikkamma v. Perumal, I. L. R. (1940) Mad. 791: A.I.R. 1940 Mad. 474 which is indicated in Bala Kotayya v. Nagayya, I. L. R. (1946) Mad. 566: A.I.R. 1940 Mad. 509 should stand resolved as early as possible, so that if it is resolved in favour of the more liberal view taken in Chikkanna v. Perumal, I. L. R. (1940) Mad. 791: A. I. R. 1940 Mad. 474, not only a first appeal, as it may be secured by the suggested amendment of rules, but also a second appeal and possibly a third as incidental to the more liberal interpretation of 'decree,' which would thus result, may be available to the litigant. I can only hope that the conflict will soon be resolved in that way. If, on the other hand, the conflict is to be resolved adversely to the more liberal view, the litigant will have the conclusion of one appeal at least under the proposed amendment till such time as the definition of 'decree' in the Code will stand suitably amended by the Legislature, as in my opinion it ought to be.


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