1. We think that the question referred to us should be answered in the negative.
2. It would seem from the earlier cases upon the subject decided by this Court--Rash Beharee Babu 7 W.R. 130 and Hurnath Chatterjee v. Futtick Chunder Sumadar 18 W.R. 512 which have been since followed as binding authorities, that the attention of the learned Judges was not sufficiently directed to the distinction between decrees made under Sections 53, 54 and 55 of Act XX of 1866, and orders made under the Civil Procedure Code in the process of executing those decrees.
3. The prohibition against appeals in Section 55 is expressly confined to such decrees or orders as are made under the above sections of the Act; the prohibition does not extend to orders made under the Code in the course of execution proceedings, although the object of those orders may be to enforce decrees, which have been made under Section 53; and there is quite as much reason why an appeal should lie from such orders if they are generally appealable, as from any other orders which may he made in execution proceedings.
4. The reason why an appeal should lie in the one case and not in the other is well explained by Mr. Justice Melville in the Full Bench case of the Bombay High Court--Bhikambhat v. Fernandez I.L.R. 5 Bom. 676.
5. 'It is clearly just,' he says, 'that a party who has covenanted to submit to a summary decree, should not be allowed to appeal against such a decree. But in the execution of that decree both parties are exposed to all the ordinary risks and possible injury arising from an erroneous order; and there would appear to be no just cause why the sufferer should be deprived of any of the ordinary remedies which the Code of Civil Procedure provides for a decree-holder or a judgment-debtor.'
6. The learned pleader who appeared before us for the judgment-debtor was obliged to admit, that if in his view of the case one party was to be deprived of the benefit of an appeal in the execution proceedings, the other party would be also deprived of the same benefit.
7. We therefore entirely agree with the learned Judges who referred this question, and we think that the judgment-debtor should pay the costs of the reference.
8. In accordance with this ruling the Division Bench on the 26th January 1886 discharged the rule making no order as to costs.