DANIEL Vs. CHELLAKKON NADAR

JUDGEMENT

(1.) THE above appeal has been filed against the judgment and decree dated 7.12.1982 made in A.S. No. 87 of 1981 on the file of the Subordinate Judge, Kuzhithurai whereunder the lower appellate court set aside the order of the Principal District Munsif, Kuzhithurai dated 26.9.1981 made in E.P. No. 281 of 1980 in O.S. No. 34 of 1979 and remanded the matter to the trial court for disposal afresh in the light of the observations made by the lower appellate court.

(2.) THE appellants before this court were the plaintiff's and in the suit filed by them, a preliminary decree was passed for redemption of an usufructurary mortgage in favour of the respondent. A final decree was also passed. Consequently, the appellants filed E.P. No. 281 of 1980 on 2.7.1980 praying for delivery of possession of the property after assessing the value of improvements, if any, made in terms of the final decree. After contest, the trial court held that the respondent has not produced any records to show that he has made improvements and he was not entitled to anything towards the claim for improvement. THErefore, the petition for delivery was ordered.

(3.) WHEN the matter was taken up for hearing, learned counsel for the appellants, even before going into the contentions on merits, submitted that the appeal before the lower appellate court was not maintainable having regard to the amendment introduced to S. 2(2), C.P.C. by the Amendment Act 104 of 1976 which rendered an order under S. 47, C.P.C. passed in execution proceedings not to be a decree. It was also contended that in spite of the fact that the point was specifically raised, the same was not considered by the lower appellate court. In support of the submissions made by the learned counsel for the appellants, the decisions reported in Visalakshi v. Muthiah Chettiar 1 , Doraiswamy v. Premchand 2 , Nartnada Devi v. Ram Nandan Singh 3 , and Jayalakshmi Animal v. Earalhae Gounder 1 , were referred to. On the other hand, in meeting the said submission, learned counsel appearing for the respondent referred to the decision reported in Parshava Properties Ltd. v. A.K. Bose 2 , and Sundaresan v. Ramachandra and Co. 3 , and contended that since the matter involved adjudication of rights of parties, the appeal before the lower appellate court was maintainable notwithstanding the amendment introduced by the Amendment Act 104 of 1976.