Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Saraswati Barmania vs Golap Das Barman on 19 May, 1913
Equivalent citations: (1914) ILR 41 Cal 160
Author: C A Ray
Bench: Coxe, Ray


Coxe and Ray, JJ.

1. In this case it was ordered by this Court that a certain attachment should be removed pending the hearing of a certain appeal, upon the petitioner furnishing security to the satisfaction of the Court below for execution of the decree. The case then went back to the lower Court. Security was tendered; and the lower Court accepted that security on the 3rd March 1913. Against this order accepting the security an appeal has been preferred to this Court.

2. A preliminary objection has been taken that no appeal lies. In our opinion this objection must prevail. It may well be (though we need not express any opinion on the point) that the order attacked relates to the execution of a decree and comes within the scope of Section 47 of the Code of Civil Procedure of 1908. It may also be the case that it would have been appealable under the Code of 1882. But we do not think it is appealable under the present Code. It was pointed out in the case of Deoki Nandan Singh v. Bansi Singh (1911) 14 C.L.J. s33 that an order to be a decree must conclusively determine the rights of the parties. And that case was followed in the case of Srinibash Prasad Singh v. Kesho Prasad Singh (1911) I.L.R. 38 Calc.754. The learned Judges who decided the latter case observed. “In our opinion there is no room for serious controversy that the orders are orders made in course of proceedings for execution of a decree; but it does not necessarily follow from that circumstance that they are liable to be challenged, by way of appeal.” Later on it is said. “The orders questioned before us may be treated as orders relating to execution of a decree,… but it is manifest that every order made in course of proceedings for execution of a decree cannot be treated as involving a determination of a question relating to the execution of a decree.” The learned Judges also pointed out that it could not be maintained that every order, made in the course of execution proceedings was an order under Section 47 of the Civil Procedure Code and consequently appealable as a decree. And they then remarked that two tests had been suggested by which the appealable character of an order of that description might be determined, and that the second of those tests was whether the order contemplated was or was not an interlocutory order which did not conclusively determine the rights of the parties in controversy in the execution proceedings. In the opinion of the learned Judges this test, though it might not be exhaustive, furnished a satisfactory solution in many instances.

3. It appears to us to be clearly settled that every order passed in relation to execution need not necessarily be deemed to come within the scope of the definition in Section 2(2) of the Civil Procedure Code. The order assailed in the present case determines no rights of the parties that are in controversy. It was this Court that directed that the proceedings should be stayed; and this Court attached the condition that security should be given to the satisfaction of the Court below. That security has been given; and the Court below is satisfied with it. It does not appear to us that this order can possibly be regarded as an order determining any rights of the parties, or can be treated as a decree and be the subject of an appeal.

4. The appeal is accordingly dismissed with costs. Let the record be sent down to the lower Court at once.

5. It is not necessary to pass any order with reference to the Rule.

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