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1904 DIGILAW 152 (ALL)

Kishen Pershad v. Radha Madho

1904-11-04

AIKMAN, BURKITT

body1904
JUDGMENT : AIKMAN, J. 1. A preliminary objection is taken on behalf of the respondent to the hearing of this appeal. The facts appear to be that in execution of a certain decree for sale under section 88 of the Transfer of Property Act, the property ordered to be sold was sold without satisfying in full the appellants' debt, and then an application was made to the execution court for a further order under section 90 of the Act. On that application it was ordered that “a decree be prepared under section 90” When the decree was prepared, the appellants, considering that it did not give as much as they were entitled to, made an application to the Court which passed the decree under section 90, alleging that there was a variance between the judgment and the decree which had been prepared in pursuance of it. The learned Subordinate Judge allowed the application in part and disallowed it in part, specially as to a certain sum claimed for future interest. In appeal here a preliminary objection is raised by Mr. Govind Prasad that no appeal lies. 2. We think that this objection is valid and must be allowed. Admittedly no appeal lies from an order either granting or refusing an application made under section 206 of the Civil Procedure Code. It is, however, contended by the learned counsel for the appellants that the appeal is not against an order refusing to allow amendment of the decree but against the decree itself. This contention we cannot allow. It is perfectly clear that the appellants have mistaken their remedy. If the decree passed under section 90 was one with which they were dissatisfied, inasmuch as it did not give them all that they considered themselves entitled to, their remedy was by appeal under section 244 of the Code of Civil Procedure. That procedure they did not adopt, but they adopted a course in which it was plain they could not be successful, there being no real variance between the order under section 90 and the decree prepared in pursuance of that order. Even if there was a variance, this Court in appeal could not give any relief, as no appeal lies. For the above reasons we must allow the preliminary objection and dismiss the appeal with costs.