Skip to content


Jogesh Chandra Chaudhury Vs. Hemendra Kumar Roy Chaudhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal629,64Ind.Cas.547
AppellantJogesh Chandra Chaudhury
RespondentHemendra Kumar Roy Chaudhury and ors.
Cases ReferredPanch Duar Thakur v. Mani Raut
Excerpt:
civil procedure code (act v of 1908), sections 2 (2), 47 - execution proceeding--interlocutory order--appeal. - .....of february 1921, the judgment-debtor filed an application praying for stay of the issue of the sale proclamation, and his prayer was allowed, and an order was made that the issue of the sale proclamation should be stayed pending disposal of the objection under section 47, civil procedure code. the ground of the objection was that the judgment-debtor was alleging that the properties which it was proposed to sell were of much higher value than the decretal amount and that it would not be necessary to sell all the properties which were proposed to be sold. it then appears that after the order was made for stay of the issue of the sale proclamation, the decree-holder's pleader on the 8th february 1921 made an application to the learned subordinate judge, and the learned vakil for the.....
Judgment:

Lancelot Sanderson, C.J.

1. In this case a preliminary objection has been raised by the learned Vakil for the respondent that no appeal lies against the order of the learned Subordinate Judge.

2. The question arises in connection with an order of the learned Subordinate Judge,. which is dated the 8th of February 1921. The order was made in execution proceedings.

3. In order to explain the order of the 8th February 1921 it is necessary to refer to two previous orders: It appears that on the 3rd of January 1921 the judgment-debtor filed a petition praying for time to file an objection, and time was allowed; and, on the 3rd of February 1921, the judgment-debtor filed an application praying for stay of the issue of the sale proclamation, and his prayer was allowed, and an order was made that the issue of the sale proclamation should be stayed pending disposal of the objection under Section 47, Civil Procedure Code. The ground of the objection was that the judgment-debtor was alleging that the properties which it was proposed to sell were of much higher value than the decretal amount and that it would not be necessary to sell all the properties which were proposed to be sold. It then appears that after the order was made for stay of the issue of the sale proclamation, the decree-holder's Pleader on the 8th February 1921 made an application to the learned Subordinate Judge, and the learned Vakil for the appellant in this Court informs as that that application was made ex parte; the learned Subordinate Judge, in spite of the order which he had made on the 3rd of February, proceeded to make a further order to this effect: Let sale proclamation be issued. In the meantime I shall hear the objection of the judgment-debtor.' It is from that order that the present appeal has been filed.

4. I have nothing to do at the present moment with the question whether the order of the 8th of February was a proper order or whether it was reasonable under the circumstances: I am at the present moment concerned with the question as to whether an appeal lies from the order of the 8th of February.

5. The objection was made under Section 47 of the Civil Procedure Code by the judgment debtor. It was said that by reason of the terms of Section 2, Sub-section (2), the order of the 8th of February must be deemed to be a 'decree', and consequently appealable. On the other hand, the learned Vakil for the respondent has drawn our attention to a case, Deoki Nandan Singh v. Bansi Singh 10 Ind. Cas. 371 : 16 C.W.N. 124 : 14 C.L.J. 35, which is reported in 18 Calcutta Weekly Notes 124, and a subsequent case in the game Volume at page 970, Panch Duar Thakur v. Mani Raut 17 Ind. Cas. 88 : 16 C.W.N. 970. In the first of these cases it was held (according to the head note) that 'Every order passed in execution proceedings is not appealable. The order, to be appealable as a decree, must conclusively determine the rights of the parties.' The learned Judges in the course of the judgment said: 'The learned Vakil for the appellant has contended that every judicial order made in the course of execution proceedings is an order under Section 47 of the Code and is consequently appealable as a decree,' Later on they said: 'it is reasonably plain from the terms of Section 2 that an order, to be a decree, must conclusively determine the rights of the parties. If any other view were adopted, the result would be that an appeal would be preferred against every order in the course of execution proceedings.' Now, the learned Vakil Mr. Chakraburtty on this occasion has not gone so far as to say that every judicial order in the course of execution proceedings is appealable. He has agreed that in order to be appealable the order must determine the right or rights of the parties with regard to some matter in the execution proceedings; he argued, however, that in this case the learned Subordinate Judge had virtually decided a right of the judgment-debtor, and that right was the right claimed by the judgment-debtor to have some of the properties excluded from the sale proclamation. In my judgment the learned Subordinate Judge has not decided that question. In my judgment he has decided nothing except that the sale proclamation should issue. But when he made that order, he expressly said that he would hear the objection of the judgment-debtor and decide it. But the judgment-debtor did not give him an opportunity of deciding it, inasmuch as he appealed to the High Court. When I asked the learned Vakil whether the sale proclamation, the issue of which was ordered by the learned Subordinate Judge, was final and could not be amended, the learned Vakil was constrained to admit that if the learned Subordinate Judge had heard the judgment-debtor's objection and decided in favour of the judgment-debtor, it would have been within the power of the learned Subordinate Judge to recall the sale proclamation and to amend it; consequently the sale proclamation was not final. Therefore, in my judgment, the learned Subordinate Judge has not in this case decided any of the rights of the parties with regard to all or any of the matters in controversy between them. The result is that, in my judgment, the order is not appealable. I express no opinion as regards the merits of the question: but for the reason, that in my judgment, the order is not appealable, this appeal must be dismissed with costs.

6. We assess the hearing fee in this Court at one gold mohur.

Chotzner, J.

7. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //