Veluthandi Beerankutty vs Ameth Mamu and Others

Mr. O.T.G. Nambiar contends that the appeal to the District Court was incompetent and that its judgment should, therefore, be treated as nullity

and be vacated.

The facts that give rise to the present civil revision petition may be shortly stated. The plaintiff (the petitioner before me) obtained a decree

against the respondent on November 1, 1920. After various infructuous attempts made to execute the decree) he finally filed the execution petition

in question on October 31, 1932. In that petition he asked for the arrest of the judgment-debtor (the respondent) and the attachment of his

movable properties. On December 15, 1932, i. e., after the expiry of the twelve year period prescribed by Section 48, Civil Procedure Code, he

applied for leave to amend his petition by including a fresh prayer for the attachment of the defendant''s immovable properties also. The application

was resisted on the ground that the amendment sought for, if allowed, would be tantamount to allowing the plaintiff to file a fresh execution petition

beyond the period of limitation prescribed. This contention was overruled and leave to amend the petition was granted. Against, this order of the

District Munsif, the defendant appealed to the lower Court and the District Judge, reversing that order, refused the amendment and allowed the

appeal.

The plaintiff who has filed this revision petition contends, as I have said, in the first instance, that the appeal to the lower Court was itself

incompetent. I think this contention must prevail. It cannot be doubted that the question which the lower Court had to decide was one that arose

between the parties to the suit and related to the execution of the decree and that accordingly the requirements of Section 47 were satisfied. But

the question still remains, does the order of the District Munsif satisfy the definition of the word ""decree"" in Section 2(2)? As is observed in

Srinivasa Prosad Singh v. Kesho Prosad Singh, 12 Ind. Cas. 745 : 14 CLJ 489.

Clause (2) of Section 2 then provides that the term ''decree'' shall be deemed to include the determination of any question within Section 47 but

shall not include any adjudication from which an appeal lies as an appeal from an order. This extended definition of the term ''decree'', it will be

observed, follows the primary definition that the term ''decree'' means the formal expression of an adjudication which, so far as regards the Court

expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, (see page 748 Page

of 12 Ind. Cas.--[Ed.]).

That being so, the point to decide is, was there an adjudication conclusively determining the rights of the parties ? It is not every order made u/s

47 that would be appealable, for, as is pointed out in the same judgment, if that were so, ""at every stage the execution proceeding would be liable

to be arrested by an appeal."" All that the first Court did was, to hold that the amendment could properly be made, but there was no final

adjudication, conclusive as regards the Court expressing it, determining the rights of the parties. The Court''s decision was in the nature of a finding,

and had the. Court gone further and attached the property, the defendant would then have the right of preferring an appeal. That no appeal lies

from an interlocutory order is well settled and I must hold that the order allowing the amendment was incidental and interlocutory and not final. The

appeal to the lower Court was premature and, therefore, incompetent and I must accordingly uphold Mr. Nambiar''s contention.

If I left the case here, the result would be, that the judgment-debtor, on the property, being attached, would file an appeal, the question of

substance, namely, the propriety of the amendment, would then have to be gone into. This would mean further waste of time and money; to obviate

this, I have decided to dispose of the case on the merits. There are hardly sufficient grounds, as the District Judge points out, for allowing the

plaintiff, who has Shown no diligence, to amend his petition and for thus enabling him to circumvent the statutory provision of Section 48. Special

circumstances must be shown for the indulgence asked for, and I agree with the District Judge for the reasons given by him, that the plaintiff has

failed to show that such circumstances exist.

The Civil Revision Petition fails and is dismissed. But in the circumstances to which I have adverted, the lower Court''s order as to costs is

vacated and in this Court I make no order as to costs.