Radha Persad Singh vs Polokdhari Rai and others

B. Peacock, J. 1. The appeal to the High Court in this case was from an order of the Subordinate Judge of Shahabad made upon an application for execution of a decree, praying that an attachment and sale of the judgment-debtors'' property specified in the application should be held for the purpose of satisfying the decree. A question arose as to whether the Statute of Limitation was a bar to that application, and the Subordinate Judge held, that the debtors'' plea of limitation should be disallowed with costs. He did not go on to say that the attachment be issued; but their Lordships treat the order as substantially an order that the debtors'' plea of limitation should be disallowed, and that the application should be granted. The case was appealed to the High Court, and that Court dismissed the appeal upon the ground that the order was not an appealable order within the meaning of the 588th Section of Act X of 1877. The section says: "An appeal shall lie from the following orders under this Code, and from no other such orders"; and then a number of orders are enumerated, and amongst them are the orders specified in Clauses (j) and (r). Clause (i) is: "Orders under Section 244 as to questions relating to the execution of decrees of the same nature with appealable orders made in the course of the suit"; and one of the orders in Clause (r) is an order under Section 485, by which property of the defendant sufficient to satisfy any decree which may be passed in the suit may, under certain circumstances, be attached in the course of a suit, and need not, according to the provisions of Section 490, be re-attached in execution of such decree. The question then is, whether an order for attachment and sale in execution of a decree is an order "of the same nature" as an order made in the course of a suit for attachment of the debtor''s property. Their Lordships think that the nature of the order in both cases is an order for attachment of property, and that an order for attachment of property in execution of a decree is an order of the same nature as an order for attachment of property in the course of the suit. Indeed, the only appealable order in the course of a suit at all resembling an order for attachment of property in execution of a decree, is an order under Section 485. Their Lordships, therefore, are of opinion that, taking the order under appeal as substantially an order for attachment and sale of the property in execution of the decree, it was an appealable order within Section 588. The learned Judges of the High Court have not very clearly stated their reasons, but the learned Chief Justice, Sir Richard Garth, does state that the order in this case was substantially, and in fact, an order to grant an application for attachment and sale; and in that remark their Lordships concur. They, therefore think that the order of the High Court ought to be reversed, so far as it says that the order is not appealable. 2. The rest of the judgment is not material for the purposes of this report. In the result the judgment of the High Court was affirmed and the appeal dismissed.