1. This appeal is directed against two orders made in courseof proceedings in execution of the decree in what is known as the Dumraon Rajcase. The plaintiff respondent obtained the decree in the Court of theSubordinate Judge on the 12th August, 1910. Before he could apply for executionthe defendant appealed to this Court, and, on the 8th September, 1910, obtainedan order for stay of proceedings pending the hearing of a rule for stay ofexecution. This rule was discharged on the 2nd March, 1911. The Court directed,however, that if the decree-holder applied for execution, he would be required,as he had himself offered, to furnish security under rule 6 of Order XLI of theCode of 1908. On the 29th March, 1911, the plaintiff applied for execution ofthe decree. On the 8th April, after notice to the judgment-debtor, the Courtheld that execution would proceed if the decree-holder furnished security. Noappeal has been, nor indeed could any appeal be preferred against this order,in view of the direction previously given by this Court. There weresubsequently prolonged discussions before the Subordinate Judge as to themanner in which the security was to be furnished. On the 5th June, theSubordinate Judge ordered the decree-holder to execute a security bondcovenanting to restore possession of the immoveable property in suit in theevent of reversal of the decree in appeal, and also to furnish security forrents and profile for two years and for the value of the moveable properties ofwhich the decree-holder sought delivery of possession. The Court reserved thequestion of the actual amount of the security, and also whether thedecree-holder should be called upon to deposit an amount sufficient to meet theGovernment and landlords demands. On the 8th July, the Subordinate Judge madea further order, in the matter by which he determined the amount of thesecurity at fourteen and a half lakhs of rupees to cover the rents and profitsof two years. He also directed certain sums to be deposited as security for theGovernment demand and the value of the moveables of which the decree-holdersought to take possession. He further appointed Mr. S.P. Sen Gupta as Receiverto take possession of the jewellery, silver, gold and ivory articles and othervaluable moveables of which the decree-holder did not want actual possession,the Receiver to furnish security to the extent of Rs. 14,33,500. TheSubordinate Judge finally directed the case to be put up for further orders onthe 15th July. The defendant judgment-debtor, on the 20th July, lodged the appealnow under consideration in this Court. On the face of the memorandum, theappeal was directed against the orders of the 5th June and 8th July, 1911, andwas stated to have been preferred under section 47 of the Civil Procedure Codeof 1908. A preliminary objection has been taken on behalf of the respondent, tothe competency of the appeal. But, before we deal with the preliminaryobjection, it is necessary to advert for a moment to a point incidentallyraised by the learned Vakil for the appellant. He has contended that, as thecompetency of the appeal has been questioned, he is entitled to be heard firstin support of the right to appeal, and he has placed reliance upon the decisionin Rustomji v. Kessowji 8 Bom. 287. It was ruled in that case by Sir CharlesSargent, C.J., that where an appeal having been filed, the respondent objectedthat no appeal lay, and by agreement of the parties the case was set down forthe argument of this preliminary point, the appellant had the light to begin.This proposition need not he disputed, because, in the words of Lord Halsburyin Lane v. Eadaile (1891) A.C. 210: 60 L.J. Ch. 644 : 64 L. T. 666 : 40 W.R.65, all appeals must be affirmatively given and not presumed; in other words,as put by their Lordships of the Judicial Committee in Minakshi v. Subyramanya11 M. 26, at p. 34 : 14 I.A. 160, it cannot be assumed that there is a right toappeal in every matter which comes under the consideration of the Judge suchright must be given by a Statute or by some authority equivalent to a Statute.Consequently, if the right of appeal is challenged, it is incumbent upon theappellant to establish the right to appeal. On this principle, the rule laiddown in Rustomji v. Kessowji 8 Bom. 287, which accords with the previous practicein Sonbai v. Ahmedbhai 9 B. H. C. R. 398, Hirji v. Narran 12 B. H.C.R. 129 andMithibai v. Limji 5 B. 45, may possibly be defended. That rule, it may beadded, also accords with the practice as indicated by the decision of the Houseof Lords in Lane v. Esdaile (1891) A.C. 210: 60 L.J. Ch. 644 : 64 L.T. 666 : 40W.R. 65. It does not follow, however, that an inflexible rule can be laid downas to the stage at which the appellant should be stopped and the respondentheard in support of his objection, to the competency of the appeal. To take oneillustration: in the case before us, as soon as the objection was taken to thecompetency of the appeal, it would be open to the appellant to answer that theappeal was directed against an order under section 47 of the Code of 1908,which was Appealable as a decree under section 2 of the Code. If it appeared tothe Court that this was prima facie a good answer to the objection of therespondent, the latter would have to be heard at once in support of hisobjection. In fact, unless the objection was obviously. Bound, the appellantcould hardly be expected to answer by anticipation the grounds that mightpossibly be assigned by the respondent in support of the objection. Thepractice, therefore, which has been usually followed in this Court has beendifferent; the practice has been to require respondent at the outset toindicate concisely the ground upon which his objection is based. As instancesof cases in which this practice has been followed in recent years, referencemay be made to the decisions in Ramdhari v. Ram Charitter :38 C. 143 : 7 Ind. Cas. 333, Asimuddi v. Sundari 38 C. 339 : 15 C.W.N. 844 : 14C.L.J. 224, Roghunath v. Abdhut 13 C.L.J. 412 : 38 C. 391, Jugal Pershad v.Parabau Narain : 37 C. 914 : 8 Ind. Cas. 1145 [LQ/CalHC/1910/374] , Hudson v.Morgan : 9 C. L.J. 503 : 36 C. 713 : 13 C.W.N. 654 : 1 Ind.Cas. 356, Mackenzie v. Narsingh : 10 C.L.J. 113 : 30 C. 762 :1 Ind. Cas. 413 [LQ/CalHC/1909/100] , Mathura Nath v. Basanta Kumar : 30 C. 510 :2 Ind. Cas. 572 [LQ/CalHC/1908/122] ,Upendra Kumar v. Sham Lal : 11 C.W.N. 1100 :6 C.L.J. 715 : 31 C. 1020, Mozaffer Ali v. Hedayet Hossain :5 C.L.J. 641 : 34 C. 584, Jagatdhar Narain v. Brown : 4C.L.J. 121 : 33 C. 1133 : 10 C.W.N. 1010, Gobinda Lal v Shiba Das: 33 C. 1323 : 3 C.L.J. 545 : 10 C.W.N. 986, Jung Bahadur v.Mahadeo Prasad 31 C. 207, Gulab Khan v. Addul Wahab Khan 31 C. 365, Shyamkishenv. Sundar Koer : 31 C. 373, Prosanna Kumar v. Bani Kanta: 30 C. 758, Uma Charan v. Muktakeshi 28 C. 140, SourindraMohun v. Siromoni Debi : 28 C. 171, Bujha Roy v. Ram Kumar: 20 C. 520 : 3 C.W.N. 374, Rango Roy v. Holloway: 26 C. 842 : 4 C.W.N. 95, Amrita Lal v. Shrish Chunder: 20 C. 941 : 4 C.W.N. 101, Hira Lal Ghose v. Chundra KantoGhose : 3 C.W.N. 403 : 26 C. 539, Koylash Chandra v. TarakNath : 25 C. 571 note and Lala Kandha Pershad v. Lala LalBehary : 25 C. 872. The cases of Mowla Buksh v. Kishen Pertab1 C. 102 : 25 W.R. 150, Monmohinee v. Khetter Gopaul : 1 C.127 : 24 W.R. 362, Asman Singh v. Doorga Roy : 6 C. 284 : 7C.L.R. 94 and Sreenath Roy v. Radhanath Mookerjee : 9 C. 773,indicate that the practice in question has certainly been well-recognised inthis Court for more than thirty years. In fact, there are recent decisionswhich indicate that the respondent is not only allowed to begin in support ofhis preliminary objection, but also that he is sometimes heard in reply afterthe appellant has answered his objection. See Dyebhukee v. Muddhee Mutty 1 C.123 : 24 W.R. 478, Hara Krishna v. Bishun Chandra : 7 C.L.J.420 : 35 C. 799 : 12 C.W.N. 888, Joy Gobind v. Monmotha Nath 33 C. 680, NobinKali v. Banaiata 32 C. 021 : 2 C.L.J. 595, Toolsee Money v. Sudevi: 20 C. 361 : 3 C.W.N. 347 and Bishendut v. Natulan Pershad: 12 C.W.N. 25. There can be no question, in our opinion thatthe practice which has been followed in this Court, namely, to require therespondent at the outset to indicate the grounds upon which his objection isbased, is convenient and obviously saves needless waste of time. It is anadvantage to the appellant, although, theoretically, he ought to begin insupport of his appeal, to know precisely what objection he has to meet. In thecase before us, we, therefore, allowed the learned Counsel for the respondentbriefly to indicate the nature of his objection. We then heard the appellant insupport of his right to appeal; the respondent next answered the argument, andwe finally heard the appellant in reply. We are unable to adopt the rule saiddown in Rustomji v. Kessowji (1), except subject to the modification that theCourt may, before the appellant begins, require the respondent to indicate thegrounds of his objection to the competency of the appeal. This is, as we havealready indicated, in accord with the established practice of this Court fromwhich we see no reason to depart, either on principle or on grounds ofconvenience. We shall now proceed to consider the question of the competency ofthe appeal.

2. In support of the view that the appeal is competent, ithas been argued, first, that the orders assailed fall within the scope ofsection 47 of the Code of 1908; and, secondly, that, in so far as the secondorder appoints a Receiver, it must be taken to have been made under rule 1 ofOrder XL and is, consequently, appealable under clause (s) of rule 1 of OrderXLIII. In support of the view that the appeal is incompetent, it has beenargued, on the other hand, first, that the order do not fall within the scopeof section 47, and, secondly, that in any event the orders, whether treated asorders in execution or for appointment of a Receiver, are interlocutory and notliable to he challenged by way of appeal at this stage. In our opinion, thereis no room for serious controversy that the orders are orders made in course ofproceedings for execution of a decree; but it does not necessarily follow fromthat circumstance that they are liable to be challenged by way of appeal atthis stage. Section 41 of the Code of 1908 provides that all questions arisingbetween the parties to the suit in which the decree was passed or theirrepresentatives and relating to the execution, discharge or satisfaction of thedecree, shall be determined by the Court executing the decree and not by aseparate suit. Clause (2) of section 2 then provides that the term"decree" shall be deemed to include the determination of any questionwithin section 47, but shall not include any adjudication from which an appeallies as an appeal from an order. This extended definition of the term"decree," it will be observed, follows the primary definition thatthe term "decree" means the formal expression of an adjudicationwhich, so far as regards the Court expressing it, conclusively defer mines therights of the parties with regard to all or any of the matters in controversyin the suit. Section 96 finally provides that, save where otherwise expresslyprovided, an appeal shall lie from every decree passed by any Court exercisingoriginal jurisdiction to the Court authorised to hear appeals from the decisionof such Court. The fundamental point to be determined, therefore; is whetherthe orders questioned before us are decrees within the meaning of section 2read with section 47. We may observe that in regard to the latter section, ourattention has been invited to a noticeable variation introduced into the Codeof 1908. It has been pointed out that by section 26 of Act VII of 1888, thewords "or to the stay of execution thereof" were introduced intoclause (d) of section 244 of the Code of 1882; these words, however, have beenomitted from section 47 in the Code of 1908. This, it has been argued on behalfof the appellant, does not indicate any change in the scope of the section. Inour opinion, this contention is clearly well founded. Before the Code of 1882was amended in 1888, it had been held in a series of decisions in this Court asalso in the other High Courts that the expression an order relating toexecution of a decree "was comprehensive enough to include an orderrelating to the stay of execution thereof [Krishtomohhiny v. Bama Churn 7 C.733 : 9 C. L.R. 341 Luchmeeput v. Sita Nath 8 C. 477 : 10 C.L.R. 517 Udcyadelav. Gregson 12 C. 624, Steel v. Ichchamoyi 13 C. 111, Mahant Ishwargar v.Chudasama 12 B. 30, Musaji v. Damodardas 12 B. 279, Ghazidin v. Fakir Baksh 7A. 73, and Lingum v. Kandula 20 M. 366, this last case follows the earlierauthorities, although it was decided after the amendment of the Code in 1888.]The contrary view, however, had been taken in Nihal Chand v. Rameshari 9 C. 214: 12 C. L.R. 53, and it was apparently with a view to nullify the effect of thedecision just mentioned that the Code. was amended in 1888. It is fairly clear,therefore, that the omission of the words "or relating to the stay ofexecution thereof" from the Code of 1908 does not indicate any departurefrom the policy recognised in 1888. This view is in no way affected by thedecision in Ramchandra v. Balmukund 29 B. 71, where under the Code of 1882, asamended in 1888, it was ruled, contrary to the decision in Musaji v. Damodardas12 B. 279, that an order by a Court of appeal refusing to stay execution of adecree under section 545, when execution proceedings are pending before the originalCourt, is not appealable; this decision was based on the ground that the orderof refusal was made by a Court other than the Court executing the decree, andwas consequently not within the scope of section 244 strictly and literallyinterpreted. This, however does not touch, directly or indirectly, the questionraised before us. We are not now concerned with any question of stay ofexecution; the decree-holder has applied for execution, and the Court has heldthat he is entitled to execute the decree if he complies with the conditions asto security and other matters imposed by the Court. The question is, whetherthe Court has, within the meaning of section 47, determined a question relatingto the execution of the decree. Now, there can be no doubt that the expression"relating to the execution" is, as Pigot, J., observes, "vagueand sweeping." The Legislature has not defined the expression, and we donot think it would be right to frame a formula and thus crystallise what wasintentionally left flexible. Mr. Justice Pigot in Haragobind Das v. Issuri Dasi15 C. 137, however, indicated that the expression was comprehensive enough toinclude an order in respect to the furtherance of or hindcrance to or themanner of the carrying out, the execution of the decree. From this point ofview, the orders questioned before us may be treated as orders relating toexecution of a decree, because they are steps in a proceeding in which an orderwill ultimately be made refusing or allowing the execution to proceed. But itis manifest that every order made in course of proceedings for execution of adecree, cannot be treated as involving a determination of a question relatingto the execution of a decree. If such a view were maintained, every order incourse of an execution proceeding would be a decree, and appealable as such; inother words, at every stage, the execution proceeding would be liable to bearrested by an appeal. Sreenath v. Radhanath : 9 C. 773. Onthis ground, it was pointed out in Behary Lal v. Kedar Nath 18 C. 469, that aninterlocutory order in the course of an execution proceeding which decides, forinstance, a point of law arising incidentally or otherwise, is not a decreewithin the meaning of section 2 of the Code of 1882. See also Jogessur v.Muracho 1 C.L.R. 354. Similarly, in Sivagami v. Subrakmania 27 M. 259 and DeokiNandan v. Bansi Singh 14 C.L.J. 35 : 10 Ind. Cas. 371 [LQ/CalHC/1911/101] , it was ruled that anorder in the course of proceedings in execution, by which the value of theproperties of the judgment-debtor sought to be sold was assessed, was not adecree and was not appealable as such. The contrary view taken in Rameesur v.Shamkrissen : 8 C.W.N. 257. Ganga Prasad v. Raj Coomar 30 C.617, Sivasami v. Ratnasami 23 M. 568 and Lachman Pershad v. Ganga Pershad: 15 C.W.N. 713; 6 Ind. Cas. 180 [LQ/CalHC/1910/134] , cannot be defended onprinciple and is inconsistent with the decision of the Judicial Committee in KoTha v. Ma Hnin : 15 C.W.N. 862; 2 M.W.N. 449; 13 Bom. L.R.694: 14 C.L.J. 241; 38 C. 717; 8 A.L.J. 1117; 6 L. B. R. 26; 11 Ind. Cas. 545,where their Lordships affirmed the view taken in Jodoonath v. Brojo Mohun: 13 C. 174, that an order refusing leave to a decree-holderto bid at an execution sale was not appealable. We may take it, therefore, asconclusively settled that the view cannot be maintained that every order madein the course of execution proceedings is an order under section 47 andconsequently appealable as a decree. See the observations in Chandrabala v.Probodh 9 C.L.J. 251; at p. 257; 30 C. 422 at p. 430; 2 Ind. Cas. 338. Arethere, then, any tests by which the appealable character of an order of thisdescription may be determined Two such tests have been suggested InJogodishury v. Kailash Chundra : 21 C. 725 at p. 739; 1C.W.N. 374, it was suggested by Mr. Justice Banerjee that the questionscontemplated by the section must be of a nature such that it is possible tosuppose that, but for the section, they could have formed the subject ofdetermination by a separate suit. This test, it must be conceded, is not ofmuch practical assistance, because in its application -questions ofconsiderable nicety may arise as to the class of questions which may be triedin an ordinary Civil suit. On the other hand, in the case of Deoki Nandan v.Bansi Singh 14 C.L.J. 35 : 10 Ind. Cas. 371 [LQ/CalHC/1911/101] , the test was suggested that theorder contemplated is not an interlocutory order which does not conclusivelydetermine the rights of the parties in controversy in the execution proceeding.This test, though it need not be deemed exhaustive, furnishes, in our opinion,a satisfactory solution in many instances. The decision in Bhup Indar v. BijaiBahadur 27 I.A. 209 : 23 A. 152 does not militate against this view; the Orderwhich who there treated as final and appealable was one which determined thatmesne profits were recoverable for three years and involved a dismissal of theremainder of the claim. In the case before us. the position is entirelydifferent; the plaintiff Seeks to execute the decree; the Court has held thathe may be allowed to execute the decree if he fulfils certain conditions. Atdifferent stages of the proceedings, the Court has determined various questionsas to the character of the conditions to be imposed, and has called upon thedecree-holder to comply with them. He has not yet done so, and the Court hasnot, consequently, yet made an order for execution. It is manifestly prematurafor the judgment-debtor to appeal against the Orders with which he isdissatisfied, because the security, it is said, has been assessed on anentirely erroneous principle; that is clearly a question which may beconsidered if and when an appeal is preferred against the final Order. Comparethe practice in England, Hoare v. Morshead (1903) 2 K.B. 359 : 72 L.J. K.B. 724: 89 L. T. 125 : 52 W.R. 87 : 19 T. L.R. 632. If the decree-holder is able tocarry out the orders of the Court and to comply with the conditions imposed, anorder will be made in his favour; when such order is made, the judgment-debtorwill be competent to prefer an appeal to this Court and challenge the proprietyof all interlocutory orders by which he may deem himself to have beenprejudiced. It has been suggested, however, that this view is inconsistent withthe decisions in Luchmeeput v. Sita Nath 8 C. 477 : 10 C.L.R. 517, Udeyadeta v.Gregson 12 C. 624 and Mahant Ishwargur v. Chudasama 12 B. 30, but it is clearthat the question was not, in these cases, considered from this point of view;the only objection taken was that the order was not one in execution at all. Ithas been finally argued that if the judgment-debtor waits till the final orderis made, it may be too late for him to obtain adequate relief from this Court.The apprehension, in our opinion, is groundless. After the final order has beenmade, if the judgment-debtor desires to prefer an appeal to this Court, theorder of the Court below must not be carried out till reasonable opportunityhas been afforded to the judgment-debtor to lodge an appeal in this Court andobtain our directions in the matter. In so far, therefore, as it is contendedthat the orders are orders in execution, we are of opinion that they areinterlocutory orders, and are not orders determining a question relating toexecution within the meaning of section 47; consequently, they are notappealable at this stage. The appeal, therefore, from this point of view, mustbe deemed incompetent.

3. There is only one other question which requires consideration.It has been suggested that the second order is appealable in so far as aReceiver is appointed thereby. It may be conceded that section 51 of the Codeof 1908 has to be read with rule 11 of Order XXI and rule 1 of Order XL, andthat, consequently, when a Court appoints a Receiver for purposes of executionof a decree, the order must be deemed to have been made under rule 1 of OrderXL read with section 51. In the case before us, however, we must hold,notwithstanding the language used in. the order of the Subordinate Judge, thata Receiver has not been appointed within the meaning of rule 1 of Order XL. Theappointment is conditional, and does not take effect until security isfurnished. We are not unmindful of the language used by the Legislature inrules 1 and 3 of Order XL, but we must look to the substance rather than to theform. If a Receiver is appointed without any direction given as to security,the order takes effect at once, and he is validly in possession though nosecurity has been given; Morrison v. Skerne (1889) 60 L. T. 588; if, on theother hand, the appointment is conditional upon the furnishing of security, thegiving of security is a condition precedent, and there is no effectiveappointment till security has been given. Ridout v. Fowler (1904) 1 Ch. 658 :75 L.J. Ch. 325 : 90 L.T. 147 : 2 Ch. 93 : 90 L.T. 509 : 53 W.R. 42 : 73 L.J.Ch. 579; see also Defries v. Creed 31 L. J. Ch. 607 : 11 Jur. (n.s.) 360 : 12L.T. 262 : 13 W.R. 632 and Edwards v. Edwards (1876) 2 Ch. D. 291 : 45 L. J.Ch. 391 : 34 L. T. 472 : 24 W.R. 713. In the case before us, it is indisputablethat no operative appointment of a Receiver has yet been made. Consequently, wemust hold that no appointment has been made within the meaning of rule 1 ofOrder XL, and there is. therefore, no order appealable under clause (s) of rule1 of Order XLIII. Upon an appeal preferred under that Order, the Court is boundto consider not only whether a Receiver should have been appointed, but also,whether a suitable person has been selected; this latter point it would befruitless to discuss till the Receiver had furnished the security demanded andthus qualified himself for the appointment; in other words, no appeal lies tillan appointment has been made, which, but for the appeal, is bound to beoperative. No such appointment has yet been made in the present case. From thispoint of view also, the appeal is premature.

4. The result, therefore, is that the preliminary objectionmust prevail, and the appeal dismissed on the ground that it is premature. Therespondent is entitled to his costs in this Court. We assess the hearing fee atten gold mohurs.

5. Let the records be sent down without delay in order thatthe inquiry before the Subordinate Judge may be completed.

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Srinivas Prosad Singhvs. Kesho Prosad Singh(04.08.1911 - CALHC)