(Prayer: Petition (disposed of on 22-4-1947) under S. 115 of Act V of 1908 praying the High Court to revise the order of the Court of the District Munsif, Tiruvarur dated 7-11-1945 and made in E.A. No. 396 of 1945 in E.P. No. 298 of 1941 (in S.C.S. No. 10554 of 1932, Court of Small Causes, Madras).)

This is a civil revision petition in which the holder of a decree in the Court of Small Causes, Madras, which was transferred for execution to the Court of the District Munsif, Tiruvarur, applies to revise the order of the District Munsif dismissing his application to amend his execution petition. A preliminary objection was taken on behalf of the respondent that an appeal lay against the order and if this objection is upheld there can be no doubt that the civil revision petition must fail and the appeal would lie to the District Judge, East Tanjore.

Mr. Sundaralingam for the petitioner relies upon the ruling in Beerankutty v. Ameth Mammu (71 M.L.J. 256=44 L.W. 99) to support his contention that the order dismissing his application for amendment is incidental and interlocutory and therefore an appeal was incompetent. In that case Venkatasubba Rao, J. held that no appeal lay against an order allowing an amendment of an execution petition. The learned Judge held that the question that arose between the parties related to the execution of the decree and therefore satisfied the requirements of S. 47 of the Code of Civil Procedure. But the order in question did not satisfy the definition of decree in S. 2(2) of the Code of Civil Procedure, because there was no final adjudication conclusively determining the rights of the parties. According to the learned Judge the Courts decision was in the nature of a finding and the appeal therefore was incompetent in the sense that it was premature, because, if the Court had gone further and attached the property, the judgment-debtor would have the right of preferring an appeal.

The view of the learned Judge that an order made under S. 47 would not be appealable if it was interlocutory in the sense that it allowed the execution petition to proceed appears to me to be untenable in view of the decision of the Bench in Rama Rao v. Sreeramamurthi (71 M.L.J. 388=44 L.W. 486). It was there held that an order disallowing the plea that the execution petition was barred by limitation and adjourning the subsequent proceedings to a future date was an appealable order. The decision of the Division Bench has been also followed in subsequent decisions.

Even assuming that the test laid down by Venkatasubba Rao, J. in the above case were to be applied to the present case, I think it should be held that the order in question was appealable because the order definitely negatived the right claimed by the decree-holder which was the subject-matter of the amendment petition. There was therefore a final adjudication conclusive as regards the Court expressing it and determining the rights of the parties. It is as if a relief claimed by the decree-holder in execution had been finally refused to him. Such an order would clearly come within the meaning of decree as defined in S. 2(2), Civil Procedure Code.

The Civil Revision Petition is therefore incompetent and is dismissed with costs.