JUDGMENT 1. - Civil Suit No. 43/1981 filed by the petitioner- plaintiff was decreed ex-parte on 12.1.1982 by the learned Munsif, Banswara and an injunction was issued against the defendants that they would not construct latrine in the disputed lane and would not obstruct using of the lane by the plaintiff. The said decree has admittedly been become final. 2. An execution application was filed by the petitioner-decree-holder alleging that judgment debtors have created obstruction in the use of the lane by putting a gate at the easter corner. The judgment-debtors contested this execution application on the ground that the gate does not create any obstruction and the alleged lane was not a public lane but was only an extension of the house of the judgment debtors. The learned executing Court considered the questions raised in the execution application and after recording evidence of the parties, decided two specific questions involved in the case, namely about status of the disputed lane and as to whether under the decree dated 12.1.1982, the decree holder was extended only an easement or the plaintiff had independent right of passing through the lane." 3. The learned executing Court found that the disputed lane was a public way and judgment debtors were not having any exclusive right over the same. The learned executing Court also found that under the decree, the decree holder was not extended any easementary right but the lane was of public use which could be used uninterruptedly by the decree holder and the judgment debtors. 4. The placing of the gate by the judgment debtors was never in dispute and it was also admitted by the judgment debtor - Kale Khan that Municipality had got the gate removed and he had given the undertaking not to place the gate without prior permission. Thereafter, again the gate was placed. A contention was raised on behalf of the judgment debtors that the gate always remained open not causing any obstruction in the movement of the decree holder and thereupon the learned executing Court observed that if the gate was always to remain open, then its utility was beyond comprehension and in fact, judgment debtors were not entitled to place any such gate. The learned executing court, therefore, by the order dated 18.1.1988 directed the judgment debtors to remove the gate within a month and to make open the disputed lane and on their failure to do so, the proceedings under Order 21 Rule 32 Civil Procedure Code would be adopted. 5. A comprehension of the order passed by the learned executing Court dated 18.1.1988 in execution case No. 5/86 makes it apparent that the questions regarding execution, discharge and satisfaction of decree were distinctly decided by the executing Court and the judgment debtors were directed to comply with the decree in its manner and effect. 6. A so-called appeal was submitted by the judgment debtors before the District Judge, Banswara against the aforesaid order dated 18.1.1988 and learned District Judge, Banswara against the aforesaid order dated 18.1.1988 and learned District Judge, Banswara in the first place on 17.2.1988 ordered this appeal to be registered as a misc. appeal and as decree holder also appeared in caveat, copies were ordered to be supplied and an undertaking was given by the counsel for decree holder that they would not proceed with the execution till next date. The said appeal was thereafter adjourned from time to time and stay over execution proceedings was granted and continued. This appeal No. 3/88 in the Court of District Judge, Banswara was transferred to the Court of Civil Judge, Banswara on 21.9.1990 and was registered on 22.9.1990 as Civil Misc. Appeal No. 20/90. The appeal was heard and decided by the learned Civil Judge, Banswara on 4.10.1991. The learned Civil Judge proceeded to observe that the ex-parte decree dated 12.1.1982 in Civil suit No. 43/81 was passed on the basis of affidavit only and therefore, the same was a decree on no evidence and hence was a nullity. The learned Civil Judge set aside the order dated 18.1.1988 and decided that the decree dated 12.1.1982 being a nullity could not be executed. This order passed by the learned Civil Judge, Banswara has been challenged in the present revision by the decree holder inter alia on the grounds that the order passed by the executing Court was an order under Section 47 of the Civil Procedure Code and no appeal was maintainable against this order and the learned Civil Judge had no jurisdiction to entertain and allow the appeal. It has also been contended that appellate Court exceeded its jurisdiction in attempting to go behind the decree and to treat it as a nullity. It has also been contended that even if the decree was passed merely on affidavit the same was not a nullity as not suffering from any inherent lack of jurisdiction and the reliance upon the case of Jagdish v. Premlata, 1982(2) RLW 109 , was entirely misplaced. 7. Learned counsel for the non-petitioners judgment debtors has attempted his best to support the impugned order and submitted that at any rate the decree was a nullity and ought not be put into execution. 8. Having heard the learned counsel for the parties and having scanned through the record of the case, this Court is clearly of the opinion that learned District Judge, Banswara has committed a serious illegality in entertaining the appeal filed by the judgment debtors and the learned Civil Judge, Banswara has also acted wholly illegally in exercising a jurisdiction not vested in him by law. This Court is clearly of the opinion that the impugned order dated 4.10.1991 deserves to be set aside. 9. A bare look at the fats leading to the appeal as briefly narrated hereinbefore, makes it apparent that the decree dated 12.1.1982 had already become final and judgment debtors were enjoined therein not to create any obstruction in use of the lane by the decree holder. The execution application was submitted when the obstruction was created particularly by placing of the gate at the front of the lane. The judgment debtors contested the execution application raising the questions regarding the meaning and effect of the decree and so also status of the disputed lane and it was also suggested that the gate does not create any obstruction. The learned executing Court after evidence of the parties determined all the questions by the order dated 18.1.1988. The said order was clearly an order under Section 47 of the Civil Procedure Code and it needs no emphasis that determination of any question within Section 47 Civil Procedure Code has specifically been omitted from the definition of decree contained in Section 2(2) Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1976. Therefore, this order cannot be deemed to be a decree and obviously not appealable as a decree. Therefore, this order cannot be deemed to be a decree and obviously not appealable as a decree. Further Section 104 Civil Procedure Code clearly provides about the orders from which an appeal shall lie with the specific declaration of "from no other orders". An order under Section 47 Civil Procedure Code is not appealable under Section 104 Civil Procedure Code nor under any of the Rules in the Civil Procedure Code. This Court is pained to notice that the learned District Judge, Banswara entertained the appeal which was not maintainable and thereafter transferred it to the Civil Judge for disposal. It is also equally painful to notice that learned Civil Judge, Banswara without even adverting to the question about the maintainability of the appeal, has proceeded to decide the same. A perusal of the record of the appeal shows further that learned Civil Judge, Banswara has even drawn a decree on disposal of this miscellaneous appeal and the contents of this decree mention as if it were an appeal against the judgment and decree passed by the Munsif, Banswara in Civil Suit No. 43/81 dated 12.1.1982, although it was not so. 10. The approach by the learned Civil Judge, Banswara has been from an altogether wrong angle and the learned Judge has proceeded in a wholly cursory manner while deciding the appeal No. 20/90 by the impugned order dated 4.10.1991. As aforesaid, the learned Judge did not even advert to the question about the maintainability of the appeal. Moreover, the learned Judge took up the objection by the judgment debtors-appellants against the decree on the basis of decision in Jagdish v. Premlata (supra) and abruptly concluded on the basis of said decision that the decree was a nullity having been passed on the basis of affidavit only. The learned Judge has failed to consider that the ex-parte decree was not suffering from any inherent lack of jurisdiction. It is relevant to notice that before the learned trial Court the defendants remained absent and the suit was decided ex parte and the trial Court has passed the decree after considering 'the plaint, affidavit and other documents'. It cannot be said that the decree was based on no evidence. It is relevant to notice that before the learned trial Court the defendants remained absent and the suit was decided ex parte and the trial Court has passed the decree after considering 'the plaint, affidavit and other documents'. It cannot be said that the decree was based on no evidence. Moreover, it could be seen from the scheme of the procedure provided under Order 8 of the Civil Procedure Code particularly, Rule 5 thereof, wherein, it is specifically provided that when defendant fails to file any pleadings, it shall be lawful for the Court to pronounce judgment on the basis of facts contained in the plaint and the Court may in its discretion require any such fact to be proved. Moreover, in the present case, the trial Court while passing the decree dated 12.1.1982 has looked at the plaint, affidavit and other documents. Thus, it cannot be inferred that the decree was a nullity as assumed by the learned Civil Judge. It is also to be noticed that such a technical objection was not even put forward by the judgment debtors before the executing Court and not distinctly set out in memo of appeal either. The order dated 4.10.1991 deserves to be sant is reversed. 11. Having considered the analytical discussion on the merit of the case by learned executing Court in the order dated 18.1.1988, this Court is clearly of the opinion that learned executing Court was perfectly justified in not accepting the baseless objections raised by the judgment debtors and in directing them to execute the decreeing its letter and spirit. The learned executing Court has noted the contention on the part of judgment debtors that the disputed gate was always open and was not creating any obstruction. The learned executing Court has rightly observed that if the gate was always to remain open, the same was neither of any use nor of utility and in fact judgment debtors were not entitled to place any such gate. The gate was clearly a source of trouble and at least had the potential to frustrate the injunction issued by the court. The same has rightly been ordered to be removed. 12. As a result of the aforesaid, this revision petition is allowed. The order dated 4.10.1991. is hereby reversed. The appeal filed by the judgment debtors is dismissed. The order dated 18.1.1988 passed by the executing Court is upheld. The same has rightly been ordered to be removed. 12. As a result of the aforesaid, this revision petition is allowed. The order dated 4.10.1991. is hereby reversed. The appeal filed by the judgment debtors is dismissed. The order dated 18.1.1988 passed by the executing Court is upheld. The executing Court shall proceed with the execution forthwith in accordance with law.Petition allowed. *******