BALMUKUND JAINARAYCM MAHEAND Vs. HIRASAO NARAYANSAO BANIA

JUDGEMENT

(1.) A preliminary objection is raised. The question is whether, and how far, an order under Section 78, Civil P.C., is appealable. I do not think there is any doubt about the point. If any question arises in the appeal as between the judgment-debtor, on the one hand, and one or other of the rival decree-holders, on the other, it would seem that the order is appealable. But if the contest in appeal is between the rival decree-holders only and is one in which the judgment-debtor is not interested, then the authorities are clear that no appeal lies. The facts are as follows: Respondent 1 Hirasao obtained a decree against respondent 3 Atmaram in civil suit No. 1068 of 1936. Respondent 2 Madhorao obtained a decree against Atmaram in civil suit No. 6 of 1934 while the appellant Balmukund obtained a decree against Atmaram in civil Suit No. 19A of 1934. These are the three rival decree-holders and the contest in appeal is between them alone. The judgment-debtor Atmaram was a decree, holder in a fourth case, civil Suit No. 276 of 1936. On 24th February 1940 respondents 1 and 2 attached this decree and on the same day Atmaram's judgment-debtor deposited the full decretal amount in Court. A few days later, namely on 2nd March 1940, the appellant Balmukund applied for execution of his own decree by attaching the money paid by Atmaram's judgment-debtor in Civil Suit No. 276 of 1936. The first Court held that Balmukund was not entitled to any of this money and held that respondents land 2 alone were entitled to it.

(2.) AN appeal was then preferred to the lower appellate Court. An objection was taken that the appeal did not lie. The lower appellate Court overruled this objection but held on the merits that the first Court was right and so dismissed the appeal. Balmukund appeals again. Sir Dinshah Mulla quotes cases at p. 298 of Edn. 11 of his Civil Procedure Code to show that no appeal lies when there is no contest between the judgment-debtor, on the one hand, and one or other of the rival decree-holders, on the other. This was also held by Pollock J. in Champalal v. Ganesh Misc. Appeal No. 300 of 1940, Decided on 23rd January 1942, and is the decision in the following two cases: Viswanatham Krishtiah v. Venkata Reddy A.I.R. 1936 Mad. 136 and Shidappa Laxmanna v. Gurusangaya Akhandaya A.I.R. 1931 Bom. 350 The learned Counsel for the appellant relies on Bishan Bas v. Tulsi Shah & Sons A.I.R. 1935 Lah. 302 and Shib Das v. Bulaki Mal & Sons A.I.R. 1927 Lah. 100 In the former case, although the order purported to have been passed under Section 73, Civil P.C., as a matter of fact it was made under Order 21, Br. 92 and 94. The position there was that one of the deeree holders had applied for execution and purchased the property himself. Instead of confirming the sale, as the Court was bound to do, it ordered on the application of a rival decree-holder that the sale would not be confirmed unless and until the decree-holder purchaser paid over to the rival decree-holder a sum of money representing the proportion which the rival decree-holder would obtain upon rateable distribution. The appeal was against the order refusing confirmation of the sale and against the condition attached to confirmation. An order of that kind is clearly appealable because the Court has ho power to refuse confirmation in the circumstances described.