AMARENDRA NATH MALLICK Vs. BALAI CHAND GHATAK

JUDGEMENT

(1.) This rule is directed against the order of Babu D.N. Pal, Munsiff of Krishnagar, dated 15th July 1935, in which he directed that a certain execution case should be dismissed for non- prosecution. The facts of the case appear to be that the petitioner's mother obtained a money decree against the opposite party on a promissory note in the Court of the first Munsif at Krishnagar. This decree was then put into execution, but during the course of the execution proceedings a brother of the judgment-debtor and certain other people filed a claim case in respect of the property against which the decree was sought to be executed. This claim case was allowed on 17 November 1934 and it is contended on behalf of the opposite party that, as a result of this claim case being allowed, there remained no property against which execution could be taken.

(2.) On 1 April 1935, the petitioner applied for amendment of the execution petition by including therein certain other property not within the jurisdiction of the Krishnagar Courts. The Munsiff allowed the amendment on 30 April 1935. On 20 June 1935 an application was made for transmitting the decree to the Court of the Munsiff at Alipur for execution but with reference to this application on 12 July 1935 the learned Munsiff held that the procedure which the decree-holder desired to adopt was irregular and he directed that the decree-holder should file a definite application stating whether he wished the decree to be sent for execution to the Alipur Court. Such an application was filed and on 15 July 1935, the learned Munsiff directed that the execution case should be dismissed and that the decreeholder should make a fresh application in proper form for a transfer of the decree for execution. It is against the latter order that this rule has been obtained.

(3.) It has been urged by the learned advocate for the petitioner that the learned Munsiff acted illegally in dismissing the execution case and that the effect of his order has been to compel the petitioner to file a fresh application for execution in the Alipur Court which, having regard to the circumstances of the case, may possibly be held to be time-barred. A preliminary objection has been urged with reference to this rule inasmuch as it is contended that no application lies for the revision of the order dated 15 July 1935 because no appeal with reference to the order in question was preferred to the District Judge. It appears however that no appeal lies with reference to an order of this nature. Such an order does not fall within the scope of those sections of the Civil Procedure code which relate to appealable orders and in no circumstances can it be held to be a decree, and in any event, having regard to the provisions of Section 2 (2), Civil P. C., the order from its very nature appears to be an order for dismissal for default. We are not prepared to accept the argument which has been urged in connexion with this preliminary objection.