BADRI NARAIN LAL Vs. RAMJI LAL

JUDGEMENT

(1.) THESE are two connected appeals. Second appeal No. 323 of 1946 has been filed against the decree passed by the lower Court in a suit for ejectment and for certain other reliefs, while the connected appeal,--execution of decree appeal No. 21 of 1947--has been filed against the order passed in execution proceedings dismissing an objection under Section 47, Civil P. C. , by the judgment-debtor.

(2.) LEARNED Counsel for the respondent raised a preliminary objection that the second appeal is incompetent. The trial Court had decreed the suit filed by the plaintiff but had directed the plaintiff to pay the costs incurred by defendant No. 2 and to pay in addition a sum of Rs. 25/- as compensatory costs. The defendants had submitted to the decree, but the plaintiff had filed an appeal against the portion of the decree directing him to pay costs and in addition compensatory costs. The appeal was allowed and the lower appellate Court set aside the order of the trial Court awarding costs and compensatory costs to defendant No. 2, against the plaintiff. The defendants have filed an appeal now really not against the order passed by the lower appellate Court but against the order passed by the trial Court decreeing the suit for ejectment. The appeal is clearly incompetent. The decree for ejectment passed by the trial Court had become final, and it cannot be challenged in second appeal when the defendants did not appeal to the lower appellate Court. This appeal, therefore, fails and is dismissed with costs.

(3.) AS regards the second execution of decree appeal, after the decree for ejectment was passed an ordinance -- (U. P. Ordinance No. III of 1946) -- was passed, Clause 7 of which is as follows: