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1990 DIGILAW 475 (MP)

Sitaram v. Chatro

1990-12-06

S.K.DUBEY

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JUDGMENT This miscellaneous appeal arises out of an order passed under S. 47 CPC, in execution proceedings. Shri Chaturvedi, learned counsel for the respondents, rightly raised a preliminary objection to the maintainability of the appeal, placing reliance on a recent Full Bench decision of this Court in Babulal v. Ramesh Babu 1990 JLJ 422 , wherein it has been held that after the amendment in the Code of Civil Procedure and its enforcement from 1.2.1977, an order passed under S. 47, CPC, ceased to be a decree and, as such, the right of appeal against such an order has now been taken away by express enactment. Shri Jain in view of the Full Bench decision in Babulal (supra) could not repel the preliminary objection but submitted that the appellants be allowed to convert this appeal into a petition under Art. 227 of the Constitution of India, because a revision in view of the State Amendment in the Code of Civil Procedure in 1984, also will not lie to this Court. I am afraid, the prayer cannot be allowed by this Court sitting in Single Bench, as the powers under Art. 227 of the Constitution are to be exercised by a Division Bench. The appellants, if so advised, may file a fresh petition before Division Bench. As the appeal is being disposed of on the preliminary objection only in view of the law laid down by the Full Bench in Babulal (supra), the certified copy of the impugned order filed with the memo of appeal be returned to the appellants. The appeal is dismissed as not maintainable. Parties to bear their own costs of this appeal. 1990 JLJ 422 (FB) relied on.