VENKATAPERUMAL RAJU BAHADUR VARU, RAJA OF KARVETNAGAR, MINOR, BY GUARDIAN, W A VARADACHARIAR Vs. VENKATA REDDI

JUDGEMENT

(1.) The respondents in these connected appeals obtained mortgage decrees against the appellant. These decrees provided for the recovery of the balance from the person and the other properties of the judgment-debtor. Certain properties, not included in the mortgage to the respondents, were attached in execution of two other decrees against the same judgment- debtor; the realised assets were paid into Court. The present respondents applied for rateable distribution; notwithstanding the objection of the judgment-debtor, the applications were granted. The judgment-debtor has appealed. A preliminary objection is taken that as the order was passed under Section 73 of the Code of Civil Procedure, against which no appeal is provided by Section 104 of the Code, no appeal should be entertained. It is conceded that the question agitated in those applications relates to the execution of the decrees between the parties to the suits in which the decrees were passed. Prima facie, therefore, the order is appealable as falling under Section 47 of the Code of Civil Procedure. Has that right of appeal been taken away in the present case by Section 73? That section does not say that no appeal shall lie against orders passed under it. It is by the omission to provide for an appeal in Section 104 that it is argued that an appeal is not given against the order. It has been held with reference to orders passed under Order XXI, Rule 63, that if the adjudication was between the parties to the suit, although the matter may arife in a claim petition, an appeal will lie under Section 47 of the Code of Civil Procedure. This principle was recognised both under the old and the new Codes : See Sundar Singh v. Biasi 18 A. 410; A.W.N. (1896) 126; Krishnabhupati Devu v. Vikrama Devu 18 M. 13 at p. 17; Vengappayyan v. Karim-panakal Parvati 26 M. 501 and Kali Prosanna Ghosh v. Golam Rahman 20 Ind. Cas. 790 : 18 C.W.N. 910. On the analogy of these decisions, we are of opinion that orders passed under Section 73 of the Code of Civil Procedure are appealable, if they affect parties to the suit. In Jagadish Chandra Shaha v. Kirpa Nath Shaha 1 Ind. Cas. 783 : 36 C. 130; Kashi Ram v. Mani Ram 14 A. 210 : A.W.N. (1892) 56 the contest was between rival decree-holders. They are not governed by Section 47 of the Code of Civil Procedure. This distinction was pointedly referred to in Balmer Lawrie of Co. v. Jaihi Nath Banerjee 27 Ind. Cas. 644 : 42 C.I.

(2.) But our attention was drawn to the judgment of Sankaran Nair and Ayling, JJ., in Pungalur Chennamma v. Raja of Karvetinagar 23 Ind. Cas. 422 : 1 L.W. 234 which at first sight appeared to be a direct authority in favour of the respondents. In that case, the appellant was one of the decree-holders. To him the provision of Clause (2) of Section 73 of the Code of Civil Procedure will apply, and he can have his remedy by way of suit if the order goes against him. The judgment-debtor cannot avail himself of the right of suit which that sub-clause provides. The present case may be distinguished from the case in Run-galur Chennamma v. Raja of Karvetinagar 26 M. 13 at p. 17 on that ground. We think that a party to whom a right of appeal is given, if he comes under Section 47 of the Code of Civil Procedure, should not be deprived of it, unless the Civil Procedure Code expressly denies it to him. As we find no such denial in Section 73 of the Civil Procedure Code, we must hold that an appeal lies. We overrule--the preliminary objection. The appeals then coming on for hearing on merits on the same day (19th March 1915) and having stood over for consideration till this day (1st April 1915), the Court delivered the following.

(3.) Seshagiri Aiyar, J.--I have, had the advantage of reading the judgment which my learned brother is about to deliver. I entirely agree with his conclusions. The respondents are entitled to rateable distribution even though their decrees are on mortgages. The order for payment of the amount from the person and the other properties of the judgment-debtor was also obtained in these cases. See Abdulla Kahib v. Doctor Oosman Sahib 28 M. 224 and Gatti Lal v. Bir Bahadur Sahi 27 A. 158 : A.W.N. (1904) 200 : 1 A.L.J. 562. It is not disputed that no formal order was passed disposing of their execution applications. Under the old Code of Civil Procedure, it was held that even when an application was "struck off", it must be taken to be still pending, as the law provided no procedure for taking such a step Sasicarna Tevar v. Arulanandam Pillai 21 M. 201 : 8 M.L.J. 18. In the present Code, there is an express provision for dismissing an execution application where no further step is taken by the decree-holder. It is clear, therefore, that until that step is taken under the new Code, the application is on the file of the Court. The fact that the decree-holder moved the Court only for a particular remedy open to him, cannot lead to the inference that he was not entitled to ask that his decree be satisfied by other means which the law enables him to adopt. The District Judge is right in treating the applications of the respondents as pending at the time that the claim for rateable distribution arose. These appeals must be dismissed with costs: There will be no costs in Civil Miscellaneous Application No. 289.