Last Updated on
1. The order, which is the subject of this appeal, was made in the course of certain execution proceedings, which have been going on between these parties since the year 1866. In those proceedings it was found by the Subordinate Judge of Shahabad that a certain sum for mesne profits was due to the plaintiffs, and on the 26th of June 1878 an application was made to the same Judge by the plaintiffs, that the rights and interests of the judgment-debtors in certain property should be sold to satisfy the sum so found to be due. The objections made to this application were two-fold–1st, that the execution proceedings had been carried on by the Subordinate Judge of Shahabad entirely without jurisdiction, and that consequently he had no power to grant the application; and 2ndly, that the application was barred by limitation under Article 179 of Act XV of 1877. The Subordinate Judge considered that, as an application had been made to the Shahabad Court in furtherance of the execution proceedings within three years from the time when this application was made, both objections depended upon the same question (see Clause 4 of Article 179), namely, whether the Shahabad Court was a competent Court to deal with the execution proceedings; and as he found this question in the affirmative, he granted the application. The defendants then appealed to this Court, and a preliminary objection has been made here by the respondents, that no appeal lies against an order of this kind. They contend that this order, though passed in the course of execution proceedings instituted under the Civil Procedure Code of 1859, was in fact made under the provisions of the new Code of 1877; and when we consider the nature of the application, and of the order which was made upon it (which was in effect to grant the application), it appears quite clear that the order was made under the new Code; and this is a point which is hardly contested by the appellants. Then, as under Section 588 of the new Code there are only certain orders from which an appeal lies, we must see whether the order now appealed against is one of them. The appellants contend that it is an order made under Clause (j) of that section, that is to say, an order made under Section 244 upon a question which relates to the execution of a decree, and of the same nature as appealable orders made in the course of a suit. There can be no doubt that the order is made under Section 244, and upon a question which relates to the execution of a decree, but the question remains, whether it is an order of the same nature as appealable orders made in the course of a suit. Now the only orders made in the course of a suit which are appealable under the new Code are those which are enumerated in Section 588; and having looked carefully through those orders, we do not find any one of them which is at all of the same nature as the order which is here appealed against. That being so it seems impossible for us to say that this order, although it relates to the execution of a decree, and raises a most important question between these parties, is of the same nature as any appealable orders made in the course of a suit under the new Code. We therefore hold the objection to be a good one, and consider that no appeal lies. We have been referred during the argument to a case which was decided at Bombay by Mr. Justice Melvill and Mr. Justice Kembell–Dalpat Bhai Bhagu Bhai v. Amarsang Khema Bhai (I.L.R., 2 Bom., 553)–in which that Court appears to have disallowed upon similar grounds an appeal against an order relating to execution proceedings; and we find, moreover, that this decision of the Bombay High Court has been followed by other Division Benches of this Court.
2. The appeal will be dismissed with costs.