TARA DEVI Vs. SHANKER PRASAD

JUDGEMENT

(1.) FIRST Additional District Judge, Mudwara, Katni in Execution Case No. 56-A/72 (Baranglal since deceased through legal representatives v. Shanker Prasad) on 14-5-99 decided certain objections of the judgment debtor Shanker Prasad (since deceased through legal representative Nos. 1 to 8) who have been impleadcd in this appeal under Section 47 and Order 28 Rule 9 of the Code of Civil Procedure (to be called as Code only) and by impugned order set aside the decree under execution in Civil Suit No. 56-A/72 with a direction that condition contained in para (e) were not complied with and the sale deed dated 19-7-75 was cancelled, the execution was dismissed and possession of the legal representatives of judgment debtor was ordered to be restored.

(2.) APPELLANTS being in suspense whether the impugned order amounts to a decree, filed this first appeal on 24-6-99. The respondent raised a preliminary objection that the impugned order being passed under Section 47 of the Code and during the execution proceedings did not amount to a decree and no appeal is competent as held in Babulal v. Ramesh Babu, AIR 1990 MP 317 (Full Bench), after amendment of 1976, the term decree has defined under Section 2 (2) of the Code which docs not include determination of any question under Section 47 of the Code. Placing reliance in the case of Moolchand v. Jung Bahadur, 1997 (I) MPWN 147, it is argued that the impugned order not being a decrc,c is not appealable under Section 96 (2) of the Code and only a revision could be competent.

(3.) OBVIOUSLY, to amount to a decree the conclusive determination should be in a suit, as held in the case of Diwan Brothers v. Central Bank of India and Ors. , AIR 1976 SC 1503 and in R. Rathinavel Chettiar and Anr. v. Sivaraman and others, 1999 (4) SCC 89. The impugned order was not passed in a civil suit. No plaint was filed. Further no formal decree was drawn by the learned Trial Court. The learned Trial Court itself did not consider the order as a decree.