IMPORTANT POINT
Section 141 applies only to procedural matters.

Subhro Kamal Mukherjee, J.—The learned advocate for the appellant is directed to insert the name of the learned trial judge in the preamble of the memorandum of appeal, here and now.

2. Mr. Aniruddha Chatterjee, learned advocate appearing for the appellant informs that his junior, Mr. Surya Prasad Chattopadhyay, learned advocate has filed fresh Vakalatnama on February 15, 2011 on behalf of the appellant under filing No. A 2497.

3. The office is directed to accept the Vakalatanama, if the Vakalatama is in form.

4. This is an appeal against an order dated December 8.2010 Passed the learned Judge. Fourth Bench City Civil Court at Calcutta in Title Appeal No. 46 of 2007.

5. The learned trial judge by the order impugned rejected an application filed under section 151 of the Code of Civil Procedure by the appellant seeking a direction on the respondent to open the Padlock of the suit premises.

6. The additional stamp reporter in his report expresses his doubt about the maintainability of the appeal.

7. Mr. Aniruddha Chatterjee, learned advocate appearing for the appellant submits that the appeal is maintainable before this Court as by the order impugned, in substance an application for mandatory injunction filed by the defendant-appellant was rejected by the learned trial judge. Therefore, in view of the provisions of Order 43, Rule 1 (r) of the Code of Civil Procedure this appeal is maintainable.

8. Mr. Chatterjee further submits, that the appeal is Continuation of a suit and therefore the application was filed by the defendant-appellant in the lower appellate Court resorting to the provision of Order 39 Rules 1 and 2 of the Code of Civil Procedure. It is not, therefore necessary for the defendant -appellant to take assistance of the provisions of section 141 of the Code of Civil Procedure for filing an application for injunction in the lower appellate court.

9. Mr. Dilip Kundu, learned advocate appearing for the respondent however disputes the contentions of Mr. Chatterjee and submits that in View of Section 104(2) of the Code of Civil Procedure, this appeal is not maintainable inasmuch as the impugned order is passed in an appeal.

10. In order to appreciate the rival contentions of the Parties, it is necessary to note the history of the legislation on the subject.

11. Section 647 of the Code of Civil Procedure. 1882 Act XIV of 1882) ran as under:

“647 The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction other than suits and appeals.”

12. There were divergence of opinions whether the expression “proceedings other than suits and appeals” included proceedings in execution.

13. While the High Court at Allahabad in Kifayat Ali v Ram Singh 1885 ILR 7 Allahabad 359; Sarju Prasad v. Sita Ram (1888) ILR 10 Allahabad 71; Fakir-ullah and another v. Thakur Prasad1890 ILR 12 Allahabad 179; Radha Charan and others v. Man Singh (1890) 12 Allahabad 392 and the High Court at Bombay in Pirjade v. Pirjade (1882) ILR 6 Bombay 681, held that the section applied to application for execution of decrees, that is, the procedure relating to suits was applicable to the applications for execution, the High Court at Calcutta in Bunko Behary Gangopadhya v. Nil Madub Chatttopadhya 1891 ILR 18 Cal 635 held that the section did not apply to the proceedings in execution.

14. The section 647 was therefore, amended by Act VI of 1892 by the addition of the explanation –

Explanation—This Section does not apply to applications for the execution of decrees which are proceedings in suits.”

15. This gives legislative sanction to the Calcutta view.

16. However The Privy Council in the case of Thakur Pushad v. Sheikh Fakir-ullah and another 22 Indian Appeals 44 held in the year 1894 that independently of the said Explanation Section 647 did not apply to the applications for execution, but only to original matters in the nature of suits, such as proceedings in probates. guardianshi