AVALATH KUNHIKOYA THANGAL Vs. DAPPOYIL AHMAD KUTTY

JUDGEMENT

(1.) In O. S. No. 1193 of 1944 on the file of the Court of the District Munsiff, Calicut, there was a decree for the redemption of a 'kanom.' Subsequent to the decree the 'Kanamdar' who continued in possession, cut down certain teak trees standing on the property and sold them to Kunhikoya Thangal and Imbichikoya Thangal. When the trees were in transit, the decree-holder applied to the Court and the logs were seized by an officer of the Court. The two Thangals who had purchased the trees then preferred a claim petition under Order XXI, Rule 58, Civil P. C. Their claim was allowed by the District Munsiff. The decree-holder thereon filed an appeal in the Court of the Subordinate Judge, Calicut. A preliminary objection was taken before him that the appeal was not competent and that the decree-holder, if he felt aggrieved by the order of the learned District Munsiff, should file a separate suit. The learned Subordinate Judge overruled the objection, held that an apeal lay, set aside the order of the learned District Munsiff and remanded the petition for fresh disposal under Section 47, Civil Procedure Code. Against that older a civil revision petition and a civil miscellaneous second appeal have been filed.

(2.) I am unable to agree with the view of the lower appellate Court. For one thing, I fail to see how this matter can be regarded as one arising under Section 47, Civil P. C., at all. That section deals only with proceedings relating to the execution, discharge or satisfaction of a decree. The action of the judgmentdebtor in cutting and selling the trees might amount to acts of waste in regard to which the decree-holder has his recognised remedies. But how any attempt to defeat or restrain the acts of waste of the judgment-debtor can be described as a matter relating to the execution, discharge or satisfaction of the decree is what I find it hard to see. The learned Subordinate Judge seems to have considered that the case fell within the scope of Section 52 of the Transfer of Property Act and that therefore Section 47, Civil P. C., was attracted. Even supposing for the moment that the latter part of his reasoning is sound, I do not agree that Section 52, Transfer of Property Act can be applied to the present case. Section 52 deals only with immovable property and Section 3 is explicit that standing timber is not immovable property. The definition reads: "Immovable property does not Include standing timber, growing crops or grass." Mr. Pocker argued that for purposes of determining whether an appeal lies or not, we must have regard to the Civil Procedure Code and as the expression "immovable property" is not defined in the Civil Procedure Code, we should look into the definition of the expression given in the General Clauses Act. That is no doubt so. But then it is an error to assume that the scope of Section 52 can be enlarged by Introducing into it in this indirect manner the definition of the expression "Immovable property" as it appears in the General Clauses Act.

(3.) The learned Subordinate Judge basing himself on the decisions in 'Ashloke v. Bodha Ganderi, AIR (13) 1926 Pat 125 and 'Shiva Dayal v. Puttulal', 54 All 437 appears to have considered that in certain cases standing trees may be treated as immovable property, depending upon the intention of the owner thereof. Neither of those two decisions has however any application to the facts of the present case. In both those cases the trees in question were also fruit bearing trees and in respect of such trees intention may decide whether they are to be regarded as fruit-bearing trees or standing timber. But in the present case, we are concerned with teak trees and nobody has so far suggested that they should be described as fruit-bearing trees. I am of opinion that the decision of the lower appellate Court is erroneous and accordingly set it aside with costs throughout in the civil revision petition.