ACHAIBAR SINGH Vs. RAM MURAT

JUDGEMENT

(1.) THIS appeal is directed against the order dated 31-7-1969 passed by the 1st Temporary Civil and Ses sions Judge, Sultanpur. The facts giving rise to this appeal are in brief as follows. The decree-holder- appellant obtained a dec ree for possession of the northern portion of the land bearing No. 275/1. This por tion of land was said to be having an area of 4 Biswas and 3 Dhurs. He put this dec ree under execution. An objection was fil ed by the judgment-debtor under Section 47 of the Code of Civil Procedure for rejection of the execution petition, on the ground that there is no demarcating boundary between the portion of the land in dispute and the land which is actually in possession of the judgment- debtor in his own rights and the plaintiff was not entitled to obtain posses sion unless he got the demarcation made through a Commissioner. The executing Court allowed the objection filed by the judgment-debtor holding that the decree in question was vague and ambiguous inas much as the land in suit had not been as certained and demarcated prior to the pass ing of the decree. He, therefore held that the decree was inexecutable. The decree' holder preferred an appeal from the said order. The appellate Court below dismiss' ed the appeal on the ground that it was in competent and not maintainable inasmuch as no appeal lay against an order or decree passed on a petition under Section 47 of the Code of Civil Procedure in the execution of a decree which had been passed in a suit filed under Section 6 of the Specifia Relief Act. The decree-holder has now come up to this Court in appeal against the said decision.

(2.) IT was urged on behalf of the appellant-decree-holder that the provisions of sub-section (3) of Section 6 of the Speci fic Relief Act did not create a bar to the maintainability of the appeal. The learned counsel argued that sub-section (3) of Sec tion 6 of the said Act would apply to an appeal which was filed from an order or decree passed in any suit instituted under Section 6 of the Specific Relief Act and would not apply to an appeal from an order passed on a petition under Section 47 of the Code of Civil Procedure and more par ticularly when such a petition was not treated as a suit I find no force in this submission.

(3.) THUS , it is by now well settled that the term 'suit' in Section 6 of the Spe cific Relief Act would include an objection Under Section 47 of the Code of Civil Pro cedure filed against the execution of the dec ree passed in such a suit and in view of the bar created by the provisions of sub-section (3) of Section 6 of the said Act no appeal would lie from an order passed on such an objection filed under Section 47 of the Code of Civil Procedure. The appellate Court below was, therefore, justified in upholding the preliminary objection and dismissing the appeal.