Bava C. Gopalaswami Mudaliar vs Sri Tyagarajaswami Devasthanam

Rajamannar, J.—This is a civil revision petition in which the holder of a decree in the Court of Small Causes, Madras, which was transferred

for execution to the Court of the District Munsiff, Tiruvarur, applies to revise the order of the District Munsiff, dismissing his application to amend

his execution petition. A preliminary objection was taken on behalf of the respondent that an appeal lay against the order and if this objection is

upheld there can be no doubt that this civil revision petition must fail and the appeal would lie to the District Judge, East Tanjore.

Mr. Sundaralingam for the petitioner relies upon the ruling in Veluthandi Beerankutty Vs. Ameth Mammu (deceased) and Others, to support his

contention that the order dismissing his application for amendment is incidental and interlocutory and therefore an appeal was incompetent. In that

case Venkatasubba Rao, J., held that no appeal lay against an order allowing an amendment of an execution petition. The learned Judge held that

the question that arose between the parties related to the execution of the decree and therefore satisfied the requirements of Section 47 of the

Code of Civil Procedure. But the order in question did not satisfy the definition of "" decree "" in Section 2(2) of the Code of Civil Procedure,

because there was no final adjudication conclusively determining the rights of the parties. According to the learned Judge the Court''s decision was

in the nature of a finding and the appeal therefore was incompetent in the sense that it was premature, because, if the Court had gone further and

attached the property, the judgment-debtor would have the right of preferring an appeal.

The view of the learned Judge that an order made u/s 47 would not be appealable if it was interlocutory in the sense that it allowed the execution

petition to proceed appears to me to be untenable in view of the decision of the Bench in Munnaluri Rama Rao by guardian Gangamma and

Another Vs. Tadikonda Sreeramamurthi and Others, . It was there held that an order disallowing the plea that the execution petition was barred by

limitation and adjourning the subsequent proceedings to a future date was an appealable order. The decision of the Division Bench has been also

followed in subsequent decisions.

Even assuming that the test laid down by Venkatasubba Rao, J., in the above case were to be applied to the present case, I think it should be

held that the order in question was appealable because the order definitely negatived the right claimed by the decree-holder which was the subject-

matter of the amendment petition. There was therefore a final adjudication conclusive as regards the Court expressing it and determining the rights

of the parties. It is as if a relief claimed by the decree-holder in execution had been finally refused to him. Such an order would clearly come within

the meaning of "" decree"" as defined in Section 2(2), Civil Procedure Code.

The Civil Revision Petition is therefore incompetent and is dismissed with costs.