Trevelyan, J.

1. This is an appeal from what has been described as anorder of the Subordinate Judge of Cuttack.

2. There was an application for execution of a decree of thePrivy Council. This decree, it seems, was compromised in March 1886. Thejudgment-creditor, alleging that the compromise had been obtained by fraud, nowseeks to execute the decree as if no compromise had been effected. The learnedSubordinate Judge first of all considered whether the proper remedy was by suitor by a proceeding in execution of the decree, and he came to the conclusionthat the remedy was not by suit but by a proceeding in execution. He thenordered that the case be tried on its merits. This is the so-called order fromwhich the present appeal is brought. It is an order in one sense and not inanother.

3. Now it is unnecessary for us, in the view we take, toexpress any opinion whether this was a right conclusion or not; for we do notthink that any appeal lies in this case. It is true that the objection that noappeal lies was not taken in the way an objection of this kind is usuallytaken, namely, as a preliminary objection by the pleader for the respondents.The objection was suggested by one of us on the learned pleader for theappellant telling us what the facts were. It is, however, none the less amatter which we should consider.

4. The question whether or not an appeal lies in this casereally depends to a great extent, if not entirely, upon the wording of theCivil Procedure Code. An appeal lies against a decree; and in Section 2"decree" is defined as an order, amongst other things, determiningany question mentioned or referred to in Section 244; and following that wehave the definition of "order" as the formal expression of anydecision of a Civil Court which is not a decree as above defined. Thatdefinition of "order" apparently cannot be used for the purpose ofdefining the word "order" in the previous part of the section, becauseit expressly excludes everything in the previous part of the section. It doesnot, we think, include an order merely determining a point of law arisingincidentally or otherwise in the course of a proceeding for determining therights of parties seeking relief. The result of any other interpretation wouldbe, as pointed out in the course of the argument, that there would be aseparate appeal from every order made in respect of any objection raised inconnection with an application; and, if the Judge chose, for the sake ofconvenience, to determine each objection separately, we might have a series ofappeals, that is, an appeal in respect of each objection on which a separateorder had been made. It seems to us that we ought to repudiate a construction ofthat kind, unless we are forced by any Act to accept it; for it does not seemto us at all likely that the Legislature would multiply appeals by allowing anappeal from every order passed in the course of an application. We think thatthe only appealable order is an order refusing an application or grantingrelief. An order arising out of a point of law which is argued in the course ofa proceeding is not appealable. It may be a very good ground for attack whenthe occasion arises for attacking the final order; but to allow an appeal ofthis kind would be very disastrous to litigants, and we could not allow itunless we were forced to do so by the Legislature or by any clear conclusionsof authority. The English authorities cited are authorities referring to otherstatutes, and the only authority approaching it, which is a decision of Mr.Justice Mark by Jogessur Sahai v. Maracho Kooer 1 C.L.R. 354 is one against it.

5. That being so, we think that no appeal lies in this case,and we dismiss the appeal with costs.

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Kedar Nath Mullick and Ors.vs. Behary Lal Pundit (23.04.1891- CALHC)