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1953 DIGILAW 125 (RAJ)

Amritlal v. Kanhaiyalal

1953-07-28

RANAWAT

body1953
RANAWAT, J.—This second appeal arises in the following circumstances:— 2. Kanhaiyalal and others filed an execution application in the court of Munsif at Bundi and an objection was taken by the judgment-debtors. On the 3rd of August, 1950, which was the date fixed by the court for the hearing of the objection, the judgment-debtor did not appear. The court therefore dismissed his objection petition for default of his appearance. At the same time the court dismissed the execution petition also. An appeal was filed by the decree-holder against the order of the first court dismissing the execution petition and the lower appellate court allowed the appeal and directed the first court to proceed with the execution case. Cross-objections were filed by the judgment-debtor in the lower appellate court but they were dismissed. The judgment-debtor has now come to this court in second appeal. 3. A preliminary objection has been raised on behalf of the decree-holder that no second appeal lies in this case. It is contended that the order dismissing the objection petition for default does not relate to an order under sec. 47 C. P. C. and hence no appeal lies against the said order. The cross-objections filed by the judgment-debtor in the lower appellate court related to the order of the first court dismissing the objection petition. The only point which is taken in this appeal is relating to the dismissal of the objection petition. 4. In support of the aforesaid contention reference is made to Abdul Hamid vs. Firm Shyamlal Chimanlal (AIR 1935 All. 502). In that case an objection petition of the judgment-debtor was dismissed for default and a restoration petition was filed but it was dismissed. A revision was then filed in the High Court and it was held that the order dismissing the objection petition for default was not one made under sec. 47 C.P.C. and no appeal lay against that order. It was further observed that it was open to the judgment-debtor to re-agitate the same objection by means of a fresh petition and that the provisions of Order 9 C.P.C. did not apply to the question of restoration petitions in such cases. Mr. Saxena, who has appeared for the judgment-debtor, has nothing to say against the authority cited by the other side. Virtually, an order for dismissal for default does not fall within the scope of sec. Mr. Saxena, who has appeared for the judgment-debtor, has nothing to say against the authority cited by the other side. Virtually, an order for dismissal for default does not fall within the scope of sec. 47 of the Civil Procedure Code, because by such orders no question between the parties relating to execution, discharge or satisfaction of the decree is disposed of. 5. The preliminary objection succeeds and this appeal is held to be not competent. It is, therefore, dismissed with costs.