Full Judgment
Richard Garth, C.J. and
1. I am of opinion that the preliminary objection must prevail, and that no appeal lies in this case.
2. Mr. Allen has contended that the order which is appealed against is one made under Section 244 of the Civil Procedure Code, and is therefore appealable under Section 2 of that Act, as amended by Act XII of 1879.
3. The suit in which the order was made is an administration suit brought by the plaintiff, a creditor, for administering the estate of Jogendronath Mookerjee, and for having the plaintiff's debts ascertained, and paid out of the assets. A decree was obtained, declaring the plaintiff entitled to the sum which he claims, and directing an account to be taken in the usual way.
4. The party to the suit who represents the estate is an infant, who appears by guardian, and an attorney named Nobin Chund Boral acts for the guardian.
5. It then appears that in another suit a sum of Rs. 5,000 has been placed in the hands of the Receiver, on account of the infant defendant in this suit; and an application was made to the Judge in the Court below that this Rs. 5,000 should be paid over to the credit of this suit, and that it should be applied in payment of the debts to the plaintiff and the other creditors of the intestate, who have proved their claims in the suit; and that the said Receiver should sell the properties in his possession and apply the proceeds towards payment of the said debts pro tanto.
6. This application, so far as it concerned the Rs. 5,000, would seem to have been a reasonable and a necessary one; but it was objected to on the part of the infant; and the learned Judge refused the application, not (so far; as I can judge from the note which was made by the officer of the Court), because there was no ground for making it, but because it was not made in proper form.
7. However this may be, the plaintiff did not apply again, as suggested by the learned Judge. If he had done so, and if the sum of Rs. 5,000 had really belonged to the estate, the application would probably have been successful. But he took the course of appealing to this Court, and has insisted upon his right of appealing upon the ground that the order of the learned Judge was a decree made under Section 244 of Act X of 1877, as being 'a decision upon a question which related to the execution of the decree.'
8. I am clearly of opinion, looking at what I conceive to be the true meaning of the word 'execution' in that and the preceding sections of the Code, that the order in this case is not appealable.
9. The section forms part of Chapter XIX of the Code, comprising Sections 223 to 343, which all relate 'to the execution of decrees,' and from the tenor of those sections it seems clear to me that the words 'execution of decrees' at the heading of the chapter mean the enforcement of the decrees of the Courts, by what is generally known as 'process of execution.' The different kinds of execution dealt within those sections are against the person and property of the judgment-debtor, or for the restoration of any specific property, land, or goods, or for compelling the judgment-debtor, by attachment, to obey the decree of the Court.
10. But the order with which we are dealing is of a totally different character.
11. The order for accounts is not in the nature of a final decree. It only directs certain proceedings to be taken, in order that a final decree may hereafter be made; and the application by Mr. Allen was only an interlocutory one, made in the course of those proceedings, and certainly not for the purpose of enforcing the decree of the Court by a process of execution properly so called.
12. Mr. Allen contends that his application was one in aid and execution of the decree which the Court has already made; now, if an order of this kind can be appealed against, it seems to me that all the numerous interlocutory orders made in the course of taking accounts or otherwise carrying out the directions of the Court would be equally appealable.
13. I think therefore that upon this ground the appeal should be dismissed with costs on scale 2.
Cunningham, J.
14. I am of the same opinion. I would only add that the reasons that my Lord has given seem to be reinforced by the language of Section 213 and the form No. 130 of the fourth schedule of the Code of Civil Procedure, which show that in the view of the framers of the Code what is called an administration decree is not really a decree at all, but merely a preliminary order.