1. This is an appeal against the order of the District Judge of South Canara, dated the 29th January 1910, in an application for execution of the decree in Original Suit No. 43 of 1906. The decree was the result of a compromise between the parties. The material portion of it was in these terms: the Court doth order and decree 'that plaintiffs do pay the assessment on the entire property as per plaint karar, dated 16th November 1905, that first defendant shall enjoy land., yielding 126 muras of rice, and house, out of the land referred to in the karar, that first defendant shall not alienate the said land of 126 muras of rice, that if alienated, the alienation shall be null and void, that after the death of the first defendant the said land and house shall be enjoyed by the second defendant paying thereabout 63 muras of rice to plaintiff annually by the end of June of each year through Court, etc.' In 1909 the plaintiff applied for execution and asked for an order 'directing that from out of the lands mentioned in the decree, land yielding 126 muras of rice which is already in the possession of the first defendant and which is to be retained with her as per compromise decree, be caused to be separated towards the said first defendant and that the remaining properties be given in possession to the plaintiffs by a Commissioner.'
2. The first defendant objected on the ground that the decree was declaratory in its terms and that therefore no execution could issue. The District Judge held that 'the decree can be executed by setting aside lands that yield 126 muras of rice income,' and directed that this should be done, and ordered the appointment of a Commissioner to prepare lists of the lands. The first defendant has presented the appeal to this Court on the ground that the Judge was wrong in construing the decree as one that was not purely declaratory.
3. On the merits there can be no doubt that the order of the Judge cannot be upheld. The decree did not direct possession of any lands to be given to the plaintiffs but merely declared the right of the first defendant to remain in possession of land yielding 126 muras of rice of which she already had possession.
4. It does not even declare the plaintiff's title to any lands but merely decrees that plaintiffs do pay the assessment on the entire property of the family. We are unable to see how on the terms of the decree an order directing that the plaintiffs be put in possession of all the lands except that yielding 126 muras of rice, could be justified.
5. Mr. Naraina Rao, the learned vakil for the respondent, has however raised a preliminary objection which we are bound to deal with. The objection is that before the appeal was presented on the 18th July 1910, the Judge had passed another order on the 18th March 1910, directing delivery to the plaintiffs in accordance with his former order after hearing the objections to the lists prepared by the Commissioner, that the defendant did not appeal against the final order of the 18th March which has in consequence become final, and that he was not entitled, after the passing of the second or final order, to appeal against the first order of the 29th January.
6. To this objection Mr. Naraina Rao in the course of his argument added another, that no appeal could be preferred at all against the order of the 29th January, as it really did not decide any question of right between the parties.
7. We may dispose of the second objection at once in a few words. According to Section 2 of the Civil Procedure Code, 'the determination of any questions within Section 47' is a decree. The question whether a decree is executable or not is certainly one that comes within this definition. No doubt the determination of a mere issue by the execution Court made prior to the passing of the final order would not be regarded as an adjudication between the parties against which, an appeal would lie. See Venkatagiri Iyer v. Sadagopachariar : (1904)14MLJ359 . But in this case the Judge did not merely record a finding on an issue. He held that execution should issue in favour of the plaintiffs, and ordered the appointment of a Commissioner as required by the decree. In Narayana Pattar v. Gopalakrishna Pattar I.L.R. (1905) Mad. 355, the learned Chief Justice and Subramania Ayyar, J., held that when the executing Court finally decided that the decree-holder was entitled to interest an appeal lay against such an order. The learned Judges there point out the distinction between that case and one where the Court merely records a finding on an issue, as in Venkatagiri Iyer v. Sadagopachariar : (1904)14MLJ359 . It has also been decided that, where the executing Court decides that the plaintiff is entitled to mesne profits, an appeal will lie against that order, though the amount of the profits may not have been ascertained by it. See Ram Kirpal v. Rup Kuari I.L.R. (1884) All. 269, Bhup Indar Bahadur Singh v. Bijai Bahadur Singh I.L.R.(1901) All. 152 and Maharajah of Bardwan v. Tarasundari Debi I.L R. (1883) Calc. 619 . Our judgment is also in accordance with Deoki Nandan Singh v. Bansi Singh (1911) 14 C.L.J., 35, which lays down the test for deciding whether an appeal would lie against any particular order in execution or not. We overrule this contention. The first contention is certainly better supported by authority, but we are of opinion that it is not entitled to prevail. The defendant being entitled to appeal against the order of the 29th January, we are unable to held that he was not entitled to do so within the period allowed to him by law. The second order merely carried out the first order in this case; it did not, in any way, supersede that order, as indeed it could not do. We cannot see how that order could affect the defendant's right of appeal. He might have had no objection to it provided the first order was right.
8. This indeed is the position taken up by the appellant before us. To use the language of the decision of a Pull Bench of this Court in another case 'where a right and jurisdiction are conferred expressly by statute' they cannot be taken away or cut down except by express words or necessary implication. It is argued that the later order, not having been appealed against, would remain in force, even if we reverse the earlier one, and that therefore it is not open to us to take the futile step of setting aside the first order. We cannot agree that the reversal of the earlier order will leave the later one intact. The second order depends for its validity upon the first one allowing execution in favour of the plaintiffs, and with the quashing of the first the second must cease to have any force. The appellant has not been able to draw our attention to any decision of this Court in support of his position. But he relies on the decision of the Calcutta High. Court in Mackenzie v. Narsingh Sahai I.L.R. (1909) Calc. 762, and upon Madhu Sudan Sen v. Kamini Kanta Sen I.L.R. (1905) Calc. 1023, which was followed in that case. It is perhaps desirable to examine briefly the decisions of the Calcutta High Court bearing on this question. Madhu Sudan Sen v. Kamini Kanta Sen I.L.R. (1905) Calc. 1023 was a case of an appeal against an order of remand. It was presented after the Munsif had passed his final judgment subsequent to the remand. Maclean, C.J., and Mitra, J., held that the appeal was incompetent. The reason given is that Section 588 of the old Civil Procedure Code provides for appeals against various interlocutory orders, several of which do not affect the decision of a suit on the merits, though some do; that a, party failing to appeal against any o the orders could object to it on an appeal against the final decree, and that therefore, if he desire to avail himself of the privilege conferred by Section 588 in relation to an order of remand, he ought to do so before the final disposal of the suit. With all respect for the learned Judges we must say the argument does not commend itself to us. When the law gives a. person two remedies he is entitled to avail himself of either of them unless they are inconsistent. See Mussamrnat Gulab Koer v. Badshah Bahadur (1909) 13 C.W.N., 1197. The learned Judges distinguished an earlier case, Jatinga Valley Tea Company v. Chera Tea Company I.L.R. (1886) Calc. 46, on the ground that the appeal there had been presented before the final judgment was passed. But the ratio of that decision is equally applicable whether the appeal against the remand is presented before or after the second judgment in the case. FIELD, J., observes 'The Code does not say that there shall be an appeal only if the case has not been finally determined in the Court of first instance, before that appeal is preferred or comes on for hearing. We cannot, therefore, import into the Code a-provision which does not there exist. The Munsif's jurisdiction to hear the case upon remand depended upon the remand order. If the remand order were badly made, the decree and, indeed all the proceedings taken under that remand order, are null and void.' In Mackenzie v. Narsingh Sahai I.L.R. (1909) Calc. 762, there was a preliminary decree in a suit for partition and a subsequent final decree. The appeal was against the former only and was presented after the final decree had been passed. The learned Judges who decided the case, MUKERJEE and CARNDUFF, JJ., followed Madhu Sudan Sen v. Kamini Kanta Sen I.L.R. (1905) Calc. 1023; they say that the final decree would still stand evren if the preliminary decree were reversed. No reason is given for this proposition. The learned Judges dissent from the judgment of the Allahabad High Court in Uman Kunwari v. Jarbandhan I.L.R. (1908) All. 479 and point out that the view taken in that case, that an appeal might be preferred against an order of remand even after the Court of fiirst instance had passed its final judgment after remand, was based on the opinion of the Allahabad Court that the party aggrieved by an order of remand could not object to it on an appeal presented against the final decree, and that the Calcutta High Court had adopted a contrary view on the point. Now, the Legislature has laid down in the present Code of Civil Procedure, Section 105(2), that an order of remand cannot be impeached except by an appeal against that order. It is similarly provided in Section 97 that 'where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.' The result of the opinion of the Calcutta High Court in the case cited by the appellant would be that, if a party without any fault of his own, is unable to appeal against a preliminary decree or an order of remand before the final decree on remand is passed, he would lose all opportunity of objecting to that order or decree and be deprived of the right of appeal expressly conferred on him by the Legislature. The incorrectness of the position would be manifest from another inconvenience which may be pointed out here. Suppose a District Court passes an order of remand and before it is appealed against the Munsif's Court passes a decision on the merits in pursuance of the remand order. Suppose the Munsif's decision on the merits is unimpeachable. If the defendant's appeal could be only against the final judgment he would be bound to appeal to the District Court though necessarily he would not be entitled in that appeal to attach that Court's order of remand. And yet, according to the view of the Calcutta Court, he would be bound to get the order of the Munsif confirmed in order to get a right of appealing to the High Court against the order of remand. Mookerji, J., has attempted in a later case to support Mackenzie v. Narsingh Shahi I.L.R. (1909) Calc. 762 on another ground. In Baikuntha Nath Dey v. Nawab Salimulla Bahadur (1907) 12 C.W.N., 590 the learned Judge says: 'When an order of remand has been made, its validity may be challenged directly and immediately by an appeal under Section 588, Clause (28), or indirectly under Section 591, when an appeal is preferred against the final decree in the suit....The party affected by the order of remand, however, must make his election. He may, if he chooses, prefer an appeal against the order of remand, obtain a stay of proceedings during the pendency of the appeal he may, on the other hand, carry out the order of remand, take the chance of a successful termination of the suit in his favour and in the event of defeat, prefer an appeal against the final decree in which the validity of the order of remand may be questioned. He cannot, however, if he has carried out the order of remand and taken the full benefit of it, turn round and prefer an appeal against the order of remand,' But surely, a party appealing against an order of remand is not entitled, as of right, to a stay of proceedings in the Court of first instance, nor does it lie in the power of a defendant objecting to a remand to decide whether he should appear at the further proceedings before the Court of first instance or not. He is bound to do so at the risk of those proceedings being completed in his absence in case of default. This theory of alternative reliefs is pointed out by Mookerji,J., himself to be wrong in Mussammat Gulab Koer v. Badshah Bahadur (1909) 13 C.W.N., 1197, where the learned Judge observes: 'That a litigant is entitled to take advantage of each and every one of the remedies open to him, except when they are inconsistent with each other.' The Allahabad High Court in Kuriya Mal v. Bishambhar Das I.L.R. (1910) All. 225 followed Mackenzie v. Narsingh Sahai I.L.R. 36 Calc. 762 distinguishing its own earlier case, Uman Kunwari v. Jarbandhar I.L.R. (1908) All. 479 [which had been dissented from Mackenzie v. Narsingh Sahai I.L.R. 36 Calc. 762 on the ground that 'a right of appeal from an order of remand...was expressly given by Section 588 of the old Code, and this Court proceeded upon the ground that such right of appeal could not be taken away in the absence of some direct provision to the contrary.' We may point out that a right of appeal against a preliminary decree or against an order in execution is also expressly granted by the statute. The learned Judges of the Allahabad High Court go on to observe; 'Moreover, in considering what the effect of the reversal of an order of remand, under Section 562 aforesaid, would be, this Court was careful to point out that anything done in pursuance of such an order wouldbecome ipso facto of no effect on the reversal of the said order, because the Court concerned would have no jurisdiction to pass any further order in the case (except by way of review), unless empowered to do so by the order under Section 562 itself. No such consideration arises in the case now before us, as it is clear that the learned Munsif after passing his preliminary decree had jurisdiction, and indeed was bound to proceed in due course to pass a final decree in the case. It seems to us that a serious anomaly would be created by the modification of the preliminary decree of June 25, 1908, while the final decree of June 30, 1908, remained in force and had not been appealed against.' The whole argument, it will be noted, is based on the assumption that the final decree which is the result of proceedings dependent for their validity on the preliminary decree would survive the reversal of the latter decree. This assumption, we have already pointed out, is unsupportable. Kuriya Mal. v. Bishambhar Das I.L.R. (1910) All. 225, has been re-affirmed by the Allahabad Court in Narain Das v. Balgobind (1911) 8 A.L.J. 604. The Madras High Court has held that an order of remand is appealable even after the passing of the final decree subsequent to the remand. See Subba Sastri v. Balachandra Sastri I.L.R. (1895) Mad. 421, and Mullikarjuna v. Pathaneni I.L.R. (1896) Mad. 479.
9. For the reasons above mentioned we overrule the first preliminary objection also.
10. In the result, the order of the lower Court must be reversed, and the application for execution dismissed, with costs both here and in the lower court.