RANGASWAMI GOUNDER Vs. RAMANA GOUNDAR

JUDGEMENT

(1.) THE two sons and wife of the judgment debtor in O. S. 430 of 1960 are the appellants in this second appeal. O. S. 430 of 1960 was filed by the respondent herein against the father of the present appellants 1 and 2. A decree was passed against the father on 6-9-1960. The decree-holder took out execution in E. P. 1189 of 1962 on 31-10-1962 against the legal representatives of the judgment debtor, as the judgment debtor died after the passing of the decree. The legal representatives of the judgment debtor, appellants 1 to 3, filed E. A. 668 of 1963 alleging that the decree against their father was obtained by fraud and collusion and that the decree is not valid and executable. In July 1963 the appellants herein filed E. A. 1245 of 1963 praying for conversion of their application E. P. 668 of 1963 into a suit. The trial Court directed in the conversion. But on appeal by the decree-holder the lower-appellate court set aside the order of the executing court and refused conversion. This C. M. S. A. is against the order refusing conversion passed by the lower appellate court.

(2.) MR. G. N. Chari, learned counsel for the appellants raised two contentions. He submitted that an appeal against an order passed under S. 47 (2), C. P. C. is not maintainable and therefore the order of the lower appellate Court is without jurisdiction. Secondly he submitted that the lower appellate court was in error in interfering with the discretion exercised by the trial court in converting the petition into a suit. Learned counsel in support of his submission that an order under S. 47 (2) directing conversion of a petition into a suit is not appealable relies on a decision of this court in Ramanuja Naicker v. Solaiappa Naicker, 60 Mad LJ 471: (AIR 1931 Mad 270 ). In that case, a petition for conversion of an application into a suit under S. 47 (2) was dismissed by the Subordinate Judge. There was an appeal preferred against the order dismissing conversion of the petition into a suit. The District judge though aware of the fact that there was no appeal against the said order, granted permission to convert the application into a suit. The High Court held that the decree in so far as it directed the conversion of the petition into a suit was wrong. In the course of his judgment, the learned Judge observed as follows:

(3.) IN the result I set aside the order of the lower appellate court dismissing the petition for converting the petition into a suit and restore the order of the trial court. There will be no order as to costs. Leave refused. Appeal allowed.