Smt. Vaidehi Kuar vs Banshu And Ors. on 23 July, 1979
7. Before I deal with the merits of the submission of the parties, I may dispose of a preliminary objection raised by the learned counsel for the respondent. His objection was that the appeal was not maintainable, inasmuch as, the application made by the appellant did not fall within the ambit of Section 144 of the Code of Civil Procedure. He urged that it was really an application under Section 151 of the Code of Civil Procedure. Consequently, the orders passed by the courts below did not amount to a decree within the meaning of Section 2 of Sub-section (2) of the Code of Civil Procedure. Learned counsel placed reliance on some decisions of other High Courts in which it has been held that reference to the term 'order' made under Section 144 of the Code of Civil Procedure does not cover an order passed in execution proceedings. It is on this ground that the learned counsel contended that the appeal was not maintainable. This submission has obviously no force. The controversy, whether an order passed in execution proceedings also falls within the four corner of Section 144 of the Code of Civil Procedure stands concluded by decision of this court reported in Krishna Gopal v. Gokul Prasad (AIR 1970 All 261) (FB) and Smt. Dayawati v. Champa Ram. (1976 All LJ 694). Following these decisions I hold that orders passed in execution proceedings are also subject to applications under Section 144 of the Code of Civil Procedure, provided of course the requirements are fulfilled. There is, therefore, no substance in the preliminary objections raised on behalf of the respondents.