KANAKAVELU Vs. SAIJANRAJ

JUDGEMENT

(1.) THE petition for review has to be dismissed on the ground that the provisions of O.41, Rule 6 of the Code of Civil Procedure will not apply to this case. Admittedly, there was a final decree in this case and the appeal pending in this court is only against the preliminary decree. THE language of Rule 6 of O.41 of the Code of Civil Procedure makes it clear that appeal'mentioned therein should be from the decree which is sought to be executed. If there is no appeal against the said decree, there is no question of invoking this rule.

(2.) RELIANCE is placed by learned counsel on the Judgment of a Division Bench of the Allahabad High Court in Ram Katori and another v. M.Shafia Ahmad and another, A.I.R. 1933 All 732. In that case, the Allahabad High Court held that by implication the words in the Rule must be taken to govern a case where an appeal is pending against the preliminary decree and the final decree is sought to be executed. The reasoning is that the final decree based on the preliminary decree contained with itself the adjudication between the parties which had already been made in the preliminary decree, and to that extent an appeal against a preliminary decree is also by implication an appeal against a final decree, although it is not an appeal in express terms against a final decree. I do not agree with the reasoning of the Allahabad High Court. The Code of Civil Procedure uses different expressions with distinct meanings and here, the term used is 'decree from which an appeal is pending'. That cannot be construed as 'a decree which is based upon a decree against which an appeal is pending Hence, I am of the view that the provisions of O.41, Rule 6 of the Code of Civil Procedure are not applicable to this case.