SHREE JAGRUTESHWAR ETC., DEOSTHAN THROUGH WAHIWATDAR SITARAMPANT DAJIBA PANDE Vs. ATMARAM JAGANNATH PANDE

JUDGEMENT

(1.) THE main question here is whether an appeal lay to the appellate Court. A decree was passed against the applicant before me. He then applied for instalments under Order 20, Rule 11(2), Civil P.C., and the trial Court granted his prayer. On appeal the order was reversed. The question is whether the order under Order 20, Rule 11(2), was appealable. Saya Hattie v. Ma Pwa Sa A.I.R. 1926 Rang. 192 treats such an order as one in execution and says it will be appealable under Section 47 of the Code. U Shwe Yone v. Ma Yhat Ma A.I.R. 1929 Rang. 191 is to the same effect. In Chuni Ramkanhiya Lal v. Bhagwan Das A.I.R. 1926 Lah. 604 an appeal was accepted without objection and so the point was not considered. The case in Dhanukdhari Singh v. Ramratan Singh relied on by the applicant does not help because there the instalments were allowed under Section 11, Bihar Money-Lenders Act, under which no appeal is allowed. But at p. 864 the learned Judge observes that an order under Order 20, Rule 11(2), is a decree but is not appealable because it can only be passed with consent and no appeal lies against a consent decree. That is not the position in this Province. An order here can be made after notice to the decree-holder. It seems to me that whether the order be regarded as one under Section 47 or as a decree in itself because it affects the decree, it must be appealable. On the merits, the lower Court has decided the matter on the merits as well as on a construction of Order 20, Rule 11(2) (on which it has gone wrong). I cannot interfere in revision with a decision on the merits. The application is therefore dismissed with costs. Counsel's fee Rs. 15.