MOHIM CHANDRA DE Vs. MOHENDRA KUMAR DE SARKAR

JUDGEMENT

(1.) In this case it appears that on the 31st August 1905 a decree was made in favour of the decree holder, who is the respondent before us, for about Rs. 1,000. The final decree in appeal is dated 20th July 1906. After a succession of comparatively unsuccessful applications in execution such proceedings were again instituted on the 22nd April 1918. These proceedings were continued from the 22nd April 1918 to 16th December 1918. In this interval a sum of Rs. 15 was realized. On the 16th December 1918 in the absence of the decree-holder who had also taken no steps after the return on the 13th December of an in fructuous process, the proceedings were dismissed in default. On the 13th January 1919 the decree holder then made an application which purported to be one under Order IX, Rule 4 of the Code of Civil Procedure. In this application the decree holder explained how it came about that the warrant of attachment of the moveable properties returned on the 13th had become infructuous and also explained his non appearance in Court on the 14th and 16th December 1918. On this application after hearing both parties, the Munsif in whose Court the execution had been proceeding made an order which was in substance to the effect that he was satisfied with the explanation offered by the decree holder and purporting to act under Order IX, Rule 4, directed that the proceeding in execution instituted on the 22nd April 1908 should be revived and restored to its original number.

(2.) The present appeal by the judgment-debtors is directed against this order of the 8th March. There has been in the interval a first appeal to the Court of the District Judge. Treating the order as one made under Order IX, Rule 4, or possibly under Section 151 of the Code of Civil Procedure, the District Judge held that no appeal lay to his Court and on that ground dismissed the appeal that had been preferred to him.

(3.) In this Court it is conceded that Order IX, Rule 4, has no application to execution proceedings and it is, therefore, urged on behalf of the appellants that the order made by the Munsif on that date is ultra vires and should be set aside. On the other hand on behalf of the decree-holder respondent it is contended that though the order made purports to be one under Order IX, Rule 4, yet when it is examined, it is found that in substance it is one made under the provisions of Section 47 of the Code. It is quite true that in many cases it has been held that against ordinary interlocutory orders made in the course of execution proceedings appeals do not lie under Section 47 of the Code of Civil Procedure. But in this case the order is one which in substance determines a question, and a very important question, relating to execution between the decree-holder and the judgment-debtors. It in effect determines that not withstanding the default or supposed default of the decree holder on the 16th December he is still entitled to maintain and continue the execution proceedings instituted on the 22nd of April 1918. The determination of this question is of the greater importance in this case inasmuch as owing to the date on which the final decree in the suit was made any fresh application would be barred by limitation.