VELUTHANDI BEERANKUTTY Vs. AMETH MAMMU (DECEASED)

JUDGEMENT

(1.) Mr. O.T.G. Nambiar contends that the appeal to the District Court was incompetent and that its judgment should therefore be treated as nullity and be vacated.

(2.) The facts that give raise to the present Civil Revision Petition may be shortly stated. The plaintiff (the petitioner before me) obtained a decree against the respondent on the 1st November, 1920. After various infructuous attempts made to execute the decree, he finally filed the execution petition in question on the 31t October, 1932. In that petition he asked for the arrest of the judgment-debtor (the respondent) and the attachment of his moveable properties. On the 15 December, 1932, that is after the expiry of the twelve year period prescribed by Section 48 Civil Procedure Code, he applied for leave to amend his petition by including a fresh prayer for the attachment of the defendant's immoveable properties also. The application was resisted on the ground that the amendment sought for, if allowed, would be tantamount to allowing the plaintiff to file a fresh execution petition beyond the period of limitation prescribed. This contention was overruled and leave to amend the petition was granted. Against this order of the District Munsif, the defendant appealed to the lower Court and the District Judge, reversing that order, refused the amendment and allowed the appeal. 2. The plaintiff who has filed this Revision Petition contends, as I have said, in the first instance, that the appeal to the lower Court was itself incompetent. I think this contention must prevail. It cannot be doubted that the question which the lower Court had to decide was one, that arose between the parties to the suit and related to the execution of the decree and that accordingly the requirements of Section 47 were satisfied. But the question still remains, does the order of the District Munsif satisfy the definition of the word "decree" in Section 2(2)? As is observed is Srinivas Prosad Singh V/s. Kesho Prosad Singh (1911) 12 I.C. 745: Clause (2) of Section 2 then provides that the term, decree shall be deemed to include the determination of any question within Section 47, but shall not include any adjudication from which an appeal lies as an appeal from an order. This extended definition of the term decree , it will be observed, follows the primary definition that the term decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. (See page 748).

(3.) That being so, the point to decide is, was there an adjudication conclusively determining the rights of the parties? It is not every order made under Section 47 that would be appealable, for, as is pointed out in the same judgment, if that were so, "at every stage the execution proceeding would be liable to be arrested by an appeal". All that the first Court did was, to hold that the amendment could properly be made, but there was no final adjudication, conclusive as regards the Court expressing it, determining the rights of the parties. The Court's decision was in the nature of a finding, and had the Court gone further and attached the property, the defendant would then have the right of preferring an appeal. That no appeal lies from an interlocutory order is well-settled and I must hold that the order allowing the amendment was incidental and interlocutory and not final. The appeal to the lower Court was premature and therefore incompetent and I must accordingly uphold Mr. Nambiar's contention.