1. The first question which we have to decide in this case is whether or not there was an appeal from the Munsif to the District Judge. The latter has held that there is not.
2. We cannot go into the merits of this case as all the facts are not before us. Therefore, I limit my observations to the question whether the applicant was entitled to be heard before the District Judge.
3. I think he has made out his right of appeal to the District Judge, because although Section 104 Clause (h), excepts from appeal an order directing the arrest of a person in execution of a decree, we must also look at the other sections of the Code. Under Section 42, the Court executing a decree sent to it has the same power in executing such decree as if it had been passed by itself, and the order in executing such decree is subject to the same rules in respect of appeal as if the decree had been passed by itself. In the present case, the decree of the Small Cause Court was sent for execution to the Court of the Munsif. Now there would have been an appeal from the order of the Munsif. Then, according to Section 42, there would be an appeal from his order as a Court executing a decree. Further, under the provisions of Section 145 of the Code, a surety is for the purposes of appeal to be deemed a party within the meaning of Section 47 and an order under Section 47 is an appealable decree.
4. Therefore, I think that the Rule must be made absolute, in so far as the order of the District Judge refusing to hear the appeal is hereby set aside, and the matter must be re-heard by him.
5. Pending the hearing of the appeal before the lower Appellate Court the petitioner will be released on the same security as before.
6. The applicant is entitled to his costs, one gold mohur.
D. Chatterjee, J.
7. I agree.