MUHAMMAD HUSAIN Versus GULRATZ KHAN

This is an appeal against the order of the Additional District Judge, Sheikhupura, dated 16th July 1970, whereby he dismissed the appeal of the present appellant on the short ground that an order under Order XXI, rule 64, C. P. C. was not appealable under Order XLIII, rule 1, C. P. C. The executing Court by its order dated the 9th April 1970, ordered the sale of the agricultural land of the surety of the judgment‑debtor which was attached on the 31st of August 1966.

2. It has been argued by Khawaja Muhammad Tufail that an order of attachment made by the executing Court under Order XXI, rule 44, C. P. C. can be appealed but that having not been done, the order of sale is a procedural consequence. In support of his contention he relied upon Sain Dad v. Punjab .National Bank Ltd., Sargodha and others (A I R 1929 Lab. 815).

3. The objection on the other hand is that property of the surety being agricultural land can be attached but could not be sold in execution of a decree or order passed by a civil or revenue Court by virtue of section 16 of Punjab Land Alienation Act, 1900. Learned counsel for the appellant has placed reliance on Syed Saeed Ahmad v. Syed Raza Hussain and others (A I R 1933 All. 57), where it was held that "where a case falls both under section 47 and under some Rule in Order XXI there will be no prohibition against a second appeal, because the prohibition under section 104(1) is confined to orders only and not decrees. If the order comes under section 47, also, the order would be a decree and an appeal would lie under section 96, C.P.C., and a second appeal under section 100 to the High Court". This judgment was by Sir Shah Sulaiman, C. J. Another judgment of the Lahore High Court reported as Chimna Ram v. Kale Singh and others (A I R 1934 Lab. 538) was also relied. I am inclined to follow the view of Sulalman, C. J. and Hilton, J., in Chimna Ram v. Kale Singh and others, in holding that the appeal was competent.

4. The result is that the order of the Additional District Judge is set aside and the case is remanded to the lower appellate Court for decision on merits. The parties to bear their own costs.

S.A.H. Appeal allowed. Case remanded.