:1: 2056.11-wp bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2056 OF 2011 Abdul Majid Usman Mitha Memon ..Petitioner Vs. Jainabi Hussain Lamboo ..Respondent Mr.R.A.Thorat with Mr.Pl.J.Thorat for Petitioner. Mr.Kishor V. Tembe for Respondent. CORAM :- B.R.GAVAI,J. DATE :- APRIL 25, 2011 P.C. 1. A short question that arises for consideration is as to whether the appeal before the learned District Judge challenging the order passed by the Executing Court under Order 47 was tenable or not. 2. A compromise decree came to be passed in Regular Civil Suit No.43 of 1977 on 18th July, 1980. On the basis of the said decree, vide order dated 10th March, 2008, the said execution proceeding i.e. Regular Darkhast No.20 of 2005 came to be dismissed. Being aggrieved thereby a Regular Civil Appeal No.36 of 2008 was filed by the respondent herein. The same is allowed. 3. Sub Section 2 of Section 2 of the Code of Civil Procedure reads thus: 2(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, (b) any order of dismissal for default. :2: 2056.11-wp 4. Undisputedly, vide the Code of Civil Procedure (Amendment) Act,1976, the words and figures “Section 47 or” came to be deleted from the definition of the term “Decree” which came into effect from 1st February, 1977. In that view of the matter, since the order impugned before the learned District Judge, does not fall in the definition of term “decree” the appeal filed by the respondent before the District Judge itself was not tenable. 5. Consequently, Rule is made absolute in terms of prayer clause (b). 6. Needless to state that the present order would not come in the way of the respondent herein to seek redressal before an appropriate forum, in accordance with law. (B.R.GAVAI, J.)