K.S. Lodha, Member—The following question has been referred to this Larger Bench by a Division Bench :

"Whether, in the facts and circumstances of the case, an order on an application under Section 47 C.P.C. in a Rajasthan Tenancy Act matter amounts to a decree within the meaning of Section 2(2) C.P.C. though sub-section (1) of Section 225 Rajasthan Tenancy Act provides that an appeal shall lie from an order :—

(i) to the Collector, if such order is passed by a Tehsildar,

(ii) to the Revenue Appellate Authority, if such order is passed by an Assistant Collector, a Sub-Divisional Officer or a Collector, and

(iii) to the Board, if such order is passed by a Revenue Appellate Authority".

2. We need not recapitulate the facts of the case out of which this reference arises because the same have been mentioned in detail in the order of reference. Suffice it to say that the appellants decree holders execution application had been dismissed as barred by time on 30-12-61. They went up in appeal against that order and that was also dismissed by the Revenue Appellate Authority on 15-9 70. Thereupon they came up in second appeal to this Board. At the time of the hearing of that second appeal before the Division Bench of this Board a preliminary objection was raised by the learned counsel for the respondents that a second appeal was not maintainable as the order dated 30-12-61 was not a decree. On hearing this preliminary objection the learned Division Bench found that there were two conflicting decisions on this question. In 1968 RRD 284 a Division Bench held that an order passed under Section 144 C.P.C. was a decree within the meaning of Section 2(2) C.P.C. and a second appeal lay against it whereas in 1971 RRD 158 another Division Bench of this Board held that an order passed under Section 47 C.P.C. cannot be deemed to he a decree within the meaning of Section 2 (2) C.P.C. because of clause (a) of that Section in a case under the Rajasthan Tenancy Act because Section 225 Rajasthan Tenancy Act makes every order made under that Act appealable. The Division Bench which heard the preliminary objection in this case was also of the view that orders under Section 144 and Section 47 C.P.C. were of the same category under Section 2 (2) C.P.C and therefore the conflict between the two aforesaid authorities required to be resolved. Hence this reference.

3. We have heard the learned counsel for the parties and the learned amicus curiae. The learned counsel for the respondents Shri Laxman Singh raised a preliminary objection to the maintainability of this reference on the ground that as a matter of fact there is no conflict between the authorities reported in 1958 RRD 284 and 1971 RRD 158 because in the earlier authority the provisions of clause (a) of Section 2(2) C.P.C. had not been taken into consideration and on that account this authority had been distinguished in 1971 R.R.D. 158 When there is no conflict between the two authorities there was no occasion for a reference. We do not find any force in this contention. On a perusal of the authority reported in 1971 R.R.D. 158 it is clear that the earlier authority of 1968 R.R.D 284 was not distinguished but it was only observed that we agree with the learned counsel for the respondents that "the issue now raised before us was not agitated before the learned Division Bench in that case and therefore the matter was not considered in all its bearings We therefore do not deem it necessary that the issue may be referred to a Larger Bench." Thus the latter Division Bench did not take the earlier authority to be of a binding character as according to it, in that authority the matter had not been considered in all its bearings and that the point raised before them was not raised before the earlier Bench. As already stated above this question whether there was a conflict between the two authorities or not was considered by the Division Bench which made this reference and it has been observed, "we have carefully co

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