Kedar Nath Mullick And Ors. vs Behary Lal Pundit on 23 April, 1891

Calcutta High Court
Kedar Nath Mullick And Ors. vs Behary Lal Pundit on 23 April, 1891
Equivalent citations: (1891) ILR 18 Cal 469
Author: Trevelyan
Bench: Tottenham, Trevelyan


Trevelyan, J.

1. This is an appeal from what has been described as an order of the Subordinate Judge of Cuttack.

2. There was an application for execution of a decree of the Privy Council. This decree, it seems, was compromised in March 1886. The judgment-creditor, alleging that the compromise had been obtained by fraud, now seeks to execute the decree as if no compromise had been effected. The learned Subordinate Judge first of all considered whether the proper remedy was by suit or by a proceeding in execution of the decree, and he came to the conclusion that the remedy was not by suit but by a proceeding in execution. He then ordered that the case be tried on its merits. This is the so-called order from which the present appeal is brought. It is an order in one sense and not in another.

3. Now it is unnecessary for us, in the view we take, to express any opinion whether this was a right conclusion or not; for we do not think that any appeal lies in this case. It is true that the objection that no appeal lies was not taken in the way an objection of this kind is usually taken, namely, as a preliminary objection by the pleader for the respondents. The objection was suggested by one of us on the learned pleader for the appellant telling us what the facts were. It is, however, none the less a matter which we should consider.

4. The question whether or not an appeal lies in this case really depends to a great extent, if not entirely, upon the wording of the Civil Procedure Code. An appeal lies against a decree; and in Section 2 “decree” is defined as an order, amongst other things, determining any question mentioned or referred to in Section 244; and following that we have the definition of “order” as the formal expression of any decision of a Civil Court which is not a decree as above defined. That definition of “order” apparently cannot be used for the purpose of defining the word “order” in the previous part of the section, because it expressly excludes everything in the previous part of the section. It does not, we think, include an order merely determining a point of law arising incidentally or otherwise in the course of a proceeding for determining the rights of parties seeking relief. The result of any other interpretation would be, as pointed out in the course of the argument, that there would be a separate appeal from every order made in respect of any objection raised in connection with an application; and, if the Judge chose, for the sake of convenience, to determine each objection separately, we might have a series of appeals, that is, an appeal in respect of each objection on which a separate order had been made. It seems to us that we ought to repudiate a construction of that kind, unless we are forced by any Act to accept it; for it does not seem to us at all likely that the Legislature would multiply appeals by allowing an appeal from every order passed in the course of an application. We think that the only appealable order is an order refusing an application or granting relief. An order arising out of a point of law which is argued in the course of a proceeding is not appealable. It may be a very good ground for attack when the occasion arises for attacking the final order; but to allow an appeal of this kind would be very disastrous to litigants, and we could not allow it unless we were forced to do so by the Legislature or by any clear conclusions of authority. The English authorities cited are authorities referring to other statutes, and the only authority approaching it, which is a decision of Mr. Justice Markby Jogessur Sahai v. Maracho Kooer 1 C.L.R. 354 is one against it.

5. That being so, we think that no appeal lies in this case, and we dismiss the appeal with costs.

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