1. This is an appeal against a decision of the District Judge of Bhagalpur, dated the 22nd September, 1899.
2. The case in which the Subordinate Judge's decision was passed was an execution case. It appears that execution had been applied for by the decree-holder, but the judgment-debtor raised certain objections, one of which, we are told, was that the decree was barred by limitation. On the date fixed for the hearing of the 'judgment debtors' objections, their pleader appeared and pleaded 'want of instructions'; and the Subordinate Judge of Monghyr recorded the following order:
The judgment-debtors' Vakil pleads want of instructions. Their objections, which are not very plausible on their face, must be dismissed for default, etc.
4. Against this order an appeal was preferred to the District Judge, who, on the 22nd of September 1899, held that no appeal lay to him, as the case had been dismissed for default, and the order of the Subordinate Judge was an order and not a decree, and the proper course for the appellant before him was to apply for a rehearing under Section 108 of the Code of Civil Procedure or Section 103, or similar sections. He further relied upon the addition to Section 647 Civil Procedure Code, made by the amending Act VI of 1892 and upon the cases of Mansab Ali v. Nihal Chand (1893) I.L.R. 15 All. 359 Jagarnath Singh v. Budhan (1895) I.L.R. 23 Cal. 115 and Anwar Ali v. Jaffer Ali (1896) I.L.R. 23 Cal. 827.
5. The judgment-debtors now appeal; and on their behalf it has been urged that the District Judge's decision is wrong and that an appeal did lie to him.
6. We think that this plea must prevail. The order of the Subordinate Judge of Monghyr appears to have been passed under Section 244, Clause (c) of the Code of Civil Procedure, being an order determining a question 'relating to the execution, discharge or satisfaction of a decree.' That being so, it was a decree within the meaning of Section 2 of the Code of Civil Procedure, and an appeal would lie under the addition to Section 540, made by the amending Act VII of 1888.
7. The learned Pleader for the respondent in this case contends that the order passed by the Subordinate Judge was not an order passed ex parte. If that be so, then there was an appeal under Section 540 without the addition made to it by Act VII of 1888, while, if it is an ex parte order, then an appeal lies under the addition to the Section So that in either case an appeal lies.
8. With regard to the provisions of Section 647, which the District Judge has referred to, we would only say that the explanation added to that section by Act VI of 1892 must be read with the addition to Section 540 made by Act VII of 1888.
9. As for the cases referred to by the District Judge, that officer has apparently overlooked the fact that they relate to orders with regard to appeals, and not with regard to original suits or proceedings, The learned pleader for the appellants in this case has called our attention to the reasoning of the Judge who decided the case of Mansab Ali v. Nihal Chand (1893) I.L.R. 15 All 359. According to that learned Judge an order dismissing a suit for default is to be regarded in exactly the same light as an order dismissing an appeal for default. But this case seems to have been decided according to the law as prevalent before the addition made to Section 540 by the amending Act VII of 1888, or at all events without reference to the clause so added. For this reason, this case cannot, in our opinion, be relied on.
10. On these grounds we decree this appeal and remand the case to the lower Appellate Court in order that it may be disposed of on the merits.
11. The costs will abide the result, Appeal allowed and and remanded.