DEVENDRA NATH BASU Vs. KAILASH CHANDRA KALU

JUDGEMENT

(1.) This is an appeal from an order of the District Judge of Nadia, confirming an order of the Munsiff of Ranaghat.

(2.) The appellants obtained a decree for rent and applied in execution for sale of the lands. A notice was served on the judgment-debtors under Order 21, Rule 66 upon which the letter appeared and objected that the lands were not properly described in the sale proclamation. The objection related to the western boundary which was stated to be certain accreted lands whereas the judgment-debtors contended that the accretions should be included in the sale, the boundary on that side being in that case the river. Upon a hearing of the application the Munsiff decided in favour of the judgment-debtors and ordered the decree-holders to furnish a true description of the rent lands within a week, failing which the execution case would be dismissed. From that order an appeal was preferred, and the learned Judge upheld the order of the Munsiff, holding upon a preliminary objection that no appeal lay, inasmuch as the order was one under Order 21, Rule 66 which did not judicially determine any matters between the parties.

(3.) I am not prepared to say that the determination of a question arising upon an application under Order 21, Rule 66 may not also be an order passed under Section 47, Civil Procedure Code. The test in each case would be whether there had been a judicial adjudication binding on the parties in a subsequent proceeding, finally determining the rights of the parties: Deoki Nandan Singh V/s. Bansi Singh (1911) 16 C.W.N. 124, Baishnab Charan Shaha V/s. Bank of Bengal (1914) 19 C.L.J. 581. An estimate of value is on a different footing from a fixing of definite boundaries. These were arrived at by the Munsiff after full consideration of the evidence adduced and it is difficult to see how the question so determined could be reopened and reagitated upon that particular ground in subsequent proceedings under Order 21, Rule 90. In my opinion the Munsiff's order amounted to a Judicial determination of the rights of the partits and was a final order under Section 47 and so appealable. Some support also is lent to this conclusion by the case of Rambhadra Naidu V/s. Kadiriyasami Naicker A.I.R. 1922 P.C. 252. The appeal is, therefore allowed the order of the District Judge set aside and the case must go back to be disposed of on the merits. The appellants will get their costs in this Court. Hearing fee two gold mohurs. Graham, J.