THACHIL MARUTH KUNHIKKAVU ALIAS AMMINI AMMA Vs. KIZHAKKA PURAKKAL THATTAN KESAVAN

JUDGEMENT

(1.) This civil miscellaneous second appeal arises out of execution proceedings. A preliminary objection is taken that no appeal lies. The appeal purports to be under Section 47, Civil P. C. Respondent 2 obtained a decree against the appellants and others and in execution thereof there was a court auction sale on 11-9-1946. The properties were purchased by a stranger and the execution petition was posted to 14-10-1946 for confirmation of sale. Meanwhile, Madras Act XVII [17] of 1946 had come into force. Defendants 1, 4 and 5 who are the appellants here deposited two years rent and interest into Court and applied in E. A. No. 1075 of 1946 under Section 4 of the Act for stay of confirmation of sale. The trial Court rejected the petition because the sale had already taken place on 11-9-1946 and in the view of the trial Court Section 4 of Act XVII [17] of 1946 had no application to such a case. The sale was duly confirmed on 21- 11-1946 and satisfaction of the decree was recorded. There was an appeal filed to the lower appellate Court purporting to be under Section 47, Civil P. C. against the order in the main execution petition confirming the sale and recording satisfaction. The ground of appeal, however, was really against the correctness of the order refusing stay under Section 4, Madras Act XVII [17] of 1946. The learned Subordinate Judge also took the view that Sections 3 and 4 of the Act read together would not take in the present case where there had been a sale already prior to the coming into force of the Act and the sale was only awaiting confirmation. The appeal was dismissed. It is against this decision that this civil miscellaneous second appeal has been filed again under Section 47, Civil P. C. The preliminary objection is that no appeal lies against an order passed under Section 4 of Act XVII [17] of 1946 as the Act does not provide for an appeal and therefore even the appeal to the lower appellate Court was incompetent and much more so the appeal to this Court.

(2.) In form, the appeals to the lower appellate Court and to this Court purport to be against the final order in the execution petition. What is urged by the learned counsel for the appellants is that in an appeal against that final order he is entitled to object to the correctness of interlocutory orders which have led to failure of justice. It is in this view that the appeals are sought to be supported as sustainable.

(3.) It may be pointed out that the Judicial Committee has held recently in Adaikappa, Chettiar v. Chandrasekhara Thevar, I. L. R. (1948) Mad. 505; (A. I. R. (35) 1918 P. C. 12), that "where a legal right is in dispute and the ordinary Courts of the country are seised of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal." In that case, the matter arose under the terms of the Madras Agriculturists Relief' Act (Madras Act IV [4] of 1938) and notwithstanding the absence of a provision for an appeal with reference to the relevant order under Sections 19 and 20 of the Act by the statute itself. Their Lordships held that where the matter arose in a pending execution petition, the right of appeal conferred by Section 47, Civil P. C. would apply. Of course, the order sought to be appealed against must involve a final determination of rights. In the present case, the refusal of a Court to grant a stay under Section 4 of the Madras Act XVII [17] of 1946 is one which affects the rights of parties. The said Act was passed temporarily staying suits and proceedings against tenants with a view to give them the benefit of an intended legislation. Presumably, the new legislation contemplated would contain a clause to make the provisions of such new enactment applicable to these pending proceedings just as if those clauses would be in force on the day when the suits or proceedings were instituted. That is what happened in connection with temporary enactments staying proceedings in connection with the amendment to the Madras Estates Land Act. Similarly, here also, what is contemplated is that these cases which are now stayed under this Act are so stayed with a view to give to the tenants the benefit of the new legislation. A refusal of stay would amount to deprivation of these possible rights. Therefore the order in question would be a decree as it is one in pending execution proceedings and from this point of view an appeal would lie under Section 47, Civil P. C. either directly against the order refusing stay or at any rate against the final order in the execution petition confirming the sale consequent on the dismissal of the petition under Section 4 of Act XVII [17] of 1946. The preliminary objection is therefore overruled.