1. This appeal is against an order of the District Judge by which he held that no appeal lay to him under Section 47 of the Code of Civil Procedure and that the objection raised by the judgment-debtor fell within the provisions of Order 21, Rule 58 of the Code of Civil Procedure.
2. It is contended by the learned vakil on behalf of the appellant that the view taken by the District Judge is erroneous. It has however been pointed out by the learned vakil on behalf of the respondent that the appeal to the District Judge was incompetent as the decree originally passed in the suit was for Rs. 9,000 odd. It appears that a sum of Rs. 8,000 odd had been paid and that the balance due under the decree together with interest thereon was about Rs. 2,033. But the decree having been passed originally for Rs. 9,000 the appeal lay to this Court and not to the District Judge. That appears to be so. The appeal to the District Judge was incompetent; It must be preferred to this Court, and unless that is done, we cannot decide the question which has been raised in the appeal before us, namely, whether the case comes under Section 47 or under Order 21, Rule 58 of the Civil Procedure Code. The only question is whether we ought to merely dismiss the present appeal on the ground that the appeal to the lower Appellate Court was incompetent leaving the appellant to pursue his remedy or whether we should not adopt the procedure which was followed in the case of Kumdini Ray v. Kamala Kant Sen A.I.R. 1922 Cal. 247. The learned Judges in that case observed: ' If the period between the presentation of the appeal in the Court of the District Judge and the order for return made by this Court be deducted, the appeal, now lodged in this Court is within time. The proper course to follow in these circumstances is that stated in Ranjit Misser v. Ramudar Singh (1912) 16 C.L.J. 77 namely, to allow the appeal, to discharge the Order of the District Judge, to record on the memorandum of appeal presented to that Court an order of return for presentation to the proper Court to be signed by the Registrar and finally to regard the memorandum as presented in this Court on this day. The memorandum will now be registered as an appeal from an original order against the order of the] Subordinate Judge passed on the 3rd March, 1920, and in the exercise of the discretion vested in the Court under Section 5 of the Indian Limitation Act, we hold that the appeal so registered is in time. The paper-book will be prepared and the' appeal heard in due course as a first appeal. We order accordingly.
3. We make a similar order in this case.
4. The additional Court-fee payable on the memorandum of the appeal in this Court must be paid by the appellant within one week from this day.
5. The appellant must pay to the respondent his costs in all the Courts, including the costs of this Court. The hearing fee is assessed at two gold mohurs in this appeal.
6. This judgment governs Appeal No. 228 of 1922 in every respect except that we assess the hearing fee in this appeal ad one gold mohur.