A finding by a lower appellate court that conclusively determines the rights of the parties in a controversy is a decree, and an appeal is therefore maintainable.

( 1 ) THIS second appeal has been preferred by the plaintiff-decree -holder against the judgement and decree dated 8-7-68 passed by Sri Brahm Kishore, Addl. Civil Judge, Aligarh in Civil Appeal No. 464 of 1967 whereby the judgement and decree dated 28-10-1967 passed by Sri V. S. Kulshrestha, Munsif Koil Aligarh was set aside and the case was remanded to the latter.

( 2 ) IN brief the facts are that the appellant Khub Chand filed a suit (No. 564 of 1950) against Babu Lal and 13 others including Ram Chand respondent (defendant-judgement-debtor) for partition and declaration for separating his one-third share in the property. A final decree was drawn up on 6-9-63 in accordance with the joint statement of the parties recorded on 9-9-55 read with Amins map. Consequent to the preparation of the final decree present appellant filed an execution application on 14-4-66 which was registered as Execution Case No. 101 of 1966 for delivery of possession over his separate Kura. The appellant prayed that in terms of the decree Amin may be directed to remove the bricks and Teras placed on the walls of the decree-holder and also for an order to the judgement-debtor Ram Chand to pay Rs. 300/- as the price of 4 pairs of doors and 3 Jangalas. Reply to such an application of the decree holder was filed by Ram Chand present respondent. The objections filed by the appellant under S. 47 C. P. C. were dismissed by the Munsif and the execution was struck off in full satisfaction on the ground that Amin had already delivered possession to the appellant over his Kura.

( 3 ) AGGRIEVED the appellant preferred an appeal. The lower appellate court on the basis of the record framed following two points for determination of the appeal : 1. Whether in execution of a final decree for partition claiming the relief for mere delivery of possession the execution Court has jurisdiction to order the demolition and removal of easementary encroachments already existing prior to the passing of the final decree. 2. Whether the judgement-debtor Ram Chand had removed four pairs of doors valued at Rs. 200/- and 3 pairs of Jangalas valued at Rs. 100/- ?. If so, its effect ?.

( 4 ) THE lower appellate court while deciding point No. 1 came to the conclusion that on a perusal of the terms of the joint statement of parties counsel dated 9-9-55 on which the final decree is based shows that parties merely intended to declare their rights without prescribing the remedy for their enforcement. The lower appellate court found that a declaratory decree is not executable. It was held that the appellant cannot have the easementary encroachment removed and demolished in execution of the partition decree.

( 5 ) WHILE deciding point No. 2 the lower appellate court found that the learned Munsif did not give any opportunity to the parties to lead oral evidence in support of their respective contentions as regards the removal of the doors and the Jangalas. The lower appellate court found that it was the duty of the executing court to have afforded an opportunity to lead oral evidence as mere affidavit or counter-affidavit were of no help. Finding that the trial court erred in relying on the Amins report the lower appellate court allowed the appeal to the extent that the learned Munsif would afford an opportunity to both the parties to lead such oral and documentary evidence as is considered necessary while deciding point No. 2. It was further held by the lower appellate court that the findings already recorded by him on point No. 1 shall be binding upon the learned Munsif.

( 6 ) AGGRIEVED by the finding on point No. 1 this second appeal has been preferred on 5-10-1968.

( 7 ) LEARNED counsel for the parties have been heard.

( 8 ) LEARNED counsel for the respondent Sri N. K. Saxena has raised a preliminary objection that this second appeal is not maintainable as the impugned order cannot be treated as a decree as it does not decide the lis between the parties nor the impugned o