WARESH MUNSHI Vs. AFTABUDDI BEPARI

JUDGEMENT

(1.) THIS appeal is directed against an order by which the Court of Appeal below, in concurrence with the Court of first instance, has set aside an execution sale. A preliminary objection has been taken to the hearing of the appeal on the ground that it is barred under the provisions of Section 102 of the Code of Civil Procedure, 1908. That section provides that no second appeal shall lie in any suit of the nature cognizable by a Court of Small Causes when the amount or value of the subject-matter of the original suit does not exceed five hundred rupees. In the case before us, the decree under execution was made in a suit of which the value was less than Rs. 500. Consequently, if Section 102 is applicable, the second appeal is incompetent. The learned Vakil for the appellant decree-holder has, however, contended, upon the authority of the decision of this Court in the cases of Chand Monee Dasya v. Santo Monee Dasya 24 C. 707 : 1 C.W.N. 534; Nemai Chand Kanji v. Deno Nath Kanji 2 C.W.N. 691; Hira Lal v. Chundra Kanto 26 C. 539 : 3 C.W.N. 403 and Bhuban Mohan v. Munda Lal dey 3 C.W.N. 399 : 26 C. 324 that a second appeal is allowed by the law, because the order of the Court of first instance was made under Section 47 of the Code of 1908 and determined whether the appellant was the representative of the original decree-holder and whether it was competent to him to execute the decree. The cases relied upon, however, are clearly distinguishable. They merely affirm the proposition that when the Court of first instance has decided a question which arises between the parties to the suit or their representatives-in-interest, and such question relates to the execution, discharge or satisfaction of the decree, the order is one under Section 47 of the Code, and is, consequently, a decree subject to the provisions for appeal. But it does not appear that in any of these cases, the decree was obtained in a suit in which the claim was valued at less than Rs. 500 and the nature of the suit was such as to make it cognizable by a Court of Small Causes. On the other hand, the cases of Lala Kandha Pershad v. Lal Behari Lal 25 C. 872 : Shyama Charan Mitter v. Debendra Nath Mukerjee 27 C. 484 : 4 C.W.N. 269; Din Dayal v. Patrakhan 18 A. 481 : A.W.N. (1896) 160; Narayan Permanand v. Nagindas Bhaidas 30 B. 113 : 7 Bom. L.R. 641 and Mavula Ammal v. Mavula Maracoir 30 M. 212 : 17 M.L.J. 376; conclusively show that a second appeal is not allowed in cases of this description. As was pointed out by this Court in the case of Anund Chunder v. Sidhy Gopal 8 W.R. 112 the term "suit" is not used in a restricted sense; it includes not merely the proceedings in the suit up to the stage of decree but comprehends also the proceedings in execution of the decree. We are not prepared to deviate from this view which has been adopted in the cases mentioned as also in Sri Bullov v. Baburam Chattopadhya 11 C. 169. But the learned Vakil for the appellant has suggested that although the term "suit" may be comprehensive enough to include proceedings in execution of the decree made therein, yet in the case before us, that principle has no application, because here the judgment-debtor seeks to prevent the confirmation of the sale which has taken place, and which, but for his objection, would be confirmed in due course. In our opinion, the distinction upon which reliance is placed is without any substance; execution cannot be completed till the sale has been confirmed, and the result of the orders of the Court below has been to set aside the sale so as to render it inevitable for the decree-holder, if the decree had not been satisfied, to take out execution afresh. Under these circumstances, it cannot be contended that the order in controversy is not an order in a proceeding in execution of a decree and thus an order in the "suit". We are, therefore, of opinion, both upon principle and upon the authorities mentioned, that the present appeal is incompetent. We may add that one of the questions decided by the Court below relates to the status of the appellant, namely, whether he could rightfully claim to be the representative of the original decree-holder. That is, at any rate, clearly a question for decision in the course of execution proceedings.

(2.) THE result, therefore, is that this appeal is dismissed with costs. We assess the hearing fee at one gold mohur.