TSHERING WONGDI BHUTIA Vs. SONAM PINTSO

JUDGEMENT

(1.) The appellant/ decree-holder obtained a money-decree against the deceased judgment-debtor, now represented by his two sons, the respondents No.1 and No.2, and in execution of that decree attached a plot of land belonging to the judgment-debtor.

(2.) Under the provisions of O.21, R.63, Civil Procedure Code an order allowing or disallowing a claim or objection to any attachment has been made "conclusive subject to the result of any suit that may be instituted by a party against whom such an order has been made. No appeal lies from such an order under the provisions of Section 104 read with Order 43, of the Civil P.C. And, therefore, the only way by which the decree-holder/appellant can challenge this order before us is by invoking, if he can, our revisional jurisdiction under S.115, Civil P.C. It is beyond doubt that if an appeal has been preferred, where none lies, the appeal may be treated and decided as a revision if the points involved are good enough to invoke and attract the revisional jurisdiction.

(3.) The Executing Court, however, by another order of the same date in the main Execution Case, "struck off" the execution petition filed by the decree-holder "without satisfaction" on the ground that even if the attached plot of land was taken into consideration as the land of the judgment-debtor, the judgment-debtor would still then have less than 5 acres of land in all and, therefore, no execution could be allowed to proceed against any portion of such lands because of the provisions contained in Notification No. 3082/L.R., paragraph 3 whereof provides that "no Court will sell or transfer a holding or any part of a holding of a primary holder in execution of a decree, whether revenue or civil, if by such sale or transfer the said holding will become less than five acres in area". And against this order an appeal has been filed by the decree-holder which has been registered as Civil Execution Appeal No.1 of 1976 and which is obviously maintainable as an appeal, being against an order determining question "relating to execution of the decree" within meaning of Section 47 read with Section 2(2) of the Civil P.C. This judgment will govern and decide both the appeals, though, as already noted, the Misc. Appeal No.2 will have to be determined and disposed of as if it were a Revisional Application. First, to that appeal-cum-revision and then to the regular appeal.