DATTADA BHIMARAJU Vs. KASIBOTLA SREERAMA SASTRULU

JUDGEMENT

(1.) I agree with my learned brother s judgment; but I desire to add that the argument based on Section 42 of the Code of Civil Procedure depends on the interpretation of the word rules therein as not conferring any substantive right of appeal but as referring only to the rules mentioned in Sections 121 to 128. It is a sufficient answer to this, that Section 42 merely reproduces Section 228 of the former Code, in which no such rules could have been in question.

(2.) The Appeal against Order must be dismissed with costs. The Civil Revision Petition which is also before us, must be dismissed, because no question under Section 115 of the Code of Civil Procedure is shown to arise. No order as to costs in the Civil Revision Petition. Seshagiri Aiyar, J.

(3.) This matter arises in execution. The Subordinate Judge of Cocanada exercising Small Cause jurisdiction passed a decree on the 14th of July 1905. It was transferred for execution to the District Munsif of Ellore on the regular side. This was on the 20th of October, 1908. The last application was on the 24th of April, .1917. On it an order to attach immoveable property was made on the 16th of August, 1917, ex parte by the District Munsif. It was set aside on the application of the judgment-debtor on the 26th of September, 1917. On the very same day, an oral application was made to arrest the judgment-debtor. The District Munsif was asked to allow the decree-holder to amend the execution application by inserting the prayer for arrest. He declined to accede to the request and dismissed the petition altogether. An appeal was made to the Sub-Court against that order. The Subordinate Judge considered that the amendment should have been allowed. He therefore set aside the order and remanded the petition for disposal on the merits. The judgment-debtor has preferred this Second Appeal. A preliminary objection is taken on behalf of the respondent that no second appeal lies. I think the contention is well founded.