KAPOORCHAND Vs. REVATI PRASAD

JUDGEMENT

(1.) ON 3 -9 -1955, the applicant (who is a decree -holder) filed an execution in the Court Of District Judge, Gwalior (Execution Case No. 23 of 1955) and on 6 -9 -1955 also filed an application under Section 46, Code of Civil Procedure for the issue of a precept to District Judge, Morena, where the property of the judgment -debtor was alleged to be.

(2.) THE preliminary objection is that since the order under revision refers to the execution and satisfaction of the decree, it must be treated to be one under Section 47, Code of Civil Procedure and hence appealable, In the circumstances no revision lies. Mr. Bhagwandas Gupta learned Counsel for the applicant says that an application for the issue of a precept is not an application for execution and he relies upon - 'Kasiwar De v. Aswini Kumar' : AIR 1926 Cal 249 ( v. 13)(A). In the Calcutta case, the point for consideration was whether an application for an attachment under Section 46 of the Code could be regarded as an application for execution, so as to enable the applicant to participate in rateable distribution. With great respect to the opinion of the learned judges of the Calcutta High Court, I would respectfully point out that the, heading of Part II, Code of Civil Procedure, in which Section 46 occurs is 'Execution'.

(3.) FOR reasons stated above, I think the preliminary objection must prevail and holding that an order under Section 46 of the Code is appealable under Section 47, I dismiss the revision. Parties shall bear their own costs of this revision.