HARI KISHAN SINGHAL Vs. KUNTI DEVI

JUDGEMENT

(1.) In execution of a decree passed in favour of the Appellant against Respondents 2 and 3 an objection was filed by the Respondent No. 1 under Order 21 Rule 58 Code of Civil Procedure. This objection was dismissed by the trial court but on appeal it was allowed by the lower appellate court. Aggrieved the decree holder has preferred this execution second appeal. The Stamp Reporter in his report dated 25th August, 1982 has pointed out that a regular second appeal and not an execution second appeal was maintainable and that if the memorandum of appeal was treated as that of a regular second appeal it was insufficiently stamped by Rs. 17/ -.

(2.) Counsel for the Appellant contests the report of the Stamp Reporter. According to him the appeal has rightly been filed as an execution second appeal on a fixed Court Fee of Rs. 5/ - and that a regular second appeal was not maintainable against the decree appealed against.

(3.) Having heard counsel for the Appellant I am of opinion that the stand taken by the Stamp Reporter that a regular second appeal and not an execution second appeal is maintainable is well founded. The definition of the term 'decree' as contained in Sec. 2 Sub -section (2) Code of Civil Procedure is as follows;