Decided on March 15,1938

TANIBAI Respondents

Referred Judgements :-



- (1.)The plaintiff respondent filed a suit against the appellant in the Court of the Second Class Subordinate Judge at Yeola for a declaration and an injunction and succeeded. The defendant appealed to the District Court and that Court on an application being made to it passed the order, " Interim stay pending disposal of the application." At the hearing of the application the plaintiff respondent's pleader gave a purshis undertaking to rebuild the portion of the defendant's building which had been ordered to be pulled down in the event of the lower Court's decree being reversed in the appeal. He has also expressed his willingness to furnish security up to Rs. 100 in token of the undertaking. In view of the purshis the interim stay order was vacated and the plaintiff-respondent was ordered to furnish the security before the lower Court. Against this order the defendant has preferred an appeal in this Court.
(2.)The learned advocate for the plaintiff-respondent has raised a preliminary objection that no appeal lies against the order of the District Judge. The order was passed under Order XLI, Rule 5, and Sir Dinshah Mulla's note under that rule in his latest edition of the Code of Civil Procedure shows that the Bombay view is that there is no appeal from an order by the appellate Court refusing to stay execution, such an order not being a decree within the meaning of Section 2, Clause 2(f). The learned advocate for the respondent has relied on Ramchandra v. Balmukund, I.L.R. (1904) Bom. 71 :, 6 Bom. L.R. 780 and Janardan Triumbak v. Martand Triumbak, I.L.R. (1920) Bom. 241 :, 22 Bom. L.R. 1212. The first of these cases related to an order refusing to stay execution of a decree under Section 545 of the Civil Procedure Code of 1882 that section corresponds to Order XLI, Rule 5), and it was held that such an order was not appealable. The main ground of this decision was that Section 244 of the old Civil Procedure Code, corresponding to the present Section 47, came under the heading of the Chapter dealing with the execution of decrees which had the title, "Questions for Court executing decree," the opening words of the section being, " The following questions shall be determined by the order of the Court executing a decree." It was held that as the District Court which had passed the order could not in any sense be described as the Court executing the decree, its order could not be said to be one made under Section 244. The Chapter of the Civil Procedure Code in which the present Section 47 is included is now headed, "Questions to be determined by the Court executing a decree", and the questions referred to in Sub-section (1) of Section 47 are to be determined " by the Court executing a decree and not by a separate suit." In this case an older Bombay case, viz. Musaji Abdulla v. Damodardas, I.L.R. (1888) 12 Bom. 279 was cited, wherein a division bench had held that an order by a District Judge under Section 545 of the Civil Procedure Code of 1882, refusing the stay of execution was a decree as defined in Section 2 and was, therefore, appealable. That view was dissented from in Ramchandra v. Balmukund. Janardan Triumbak v. Martand Triumbak dealt with a case of stay of execution under Section 47 of the present Civil Procedure Code. It was held that an order for such stay was not an appealable order. The words which appear at the end of Section 224(c) in the Code of 1882," or to the stay of execution thereof," have now been omitted in the present Section 47, and it was argued that the words had been omitted because they were considered unnecessary. But their Lordships held that that could not be supposed to be the object of the Legislature, their view thus being that the omission was deliberate and was intended to exclude orders regarding the stay of execution. In this case, however, no reference was made to the earlier case, Musaji Abdulla v. Damodardas, or to the still earlier case, Mahant Ishwargar v. Chudasama Manabhai, I.L.R. (1887) 12 Bom. 30.
(3.)The Madras and Calcutta High Courts have apparently held that the words omitted may have been regarded as superfluous, for a plea that the execution of a decree should be stayed is equivalent to the plea that the decree should not be executed, and that it is thus a question " relating to the execution " of the decree. This view has also been taken by the Lahore High Court after a consideration of all the authorities on the point. It holds that an order staying execution is one relating to the execution of the decree in the same way that an order dismissing an application for execution as time-barred is. In view of these decisions Mr. Desai for the appellant has contended that the earlier Bombay decision in Musaji Abdulla v. Damodardas, which has not been expressly overruled, should be followed rather than Janardan Triumbak v. Martand Triumbak. Apart, however, from the fact that Janardan v. Martand is the latest decision of our High Court and based on the present; Civil Procedure Code, the application of the decision in Musaji Abdulla v. Damodordas would raise more than one difficulties in the present case. In the first place, Section 47, Sub-section (1), states :-
All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

Granting for argument's sake that the question whether execution should be stayed or not is a question relating to the execution, the present order has not been passed by the " Court executing the decree", but by the lower appellate Court. That being so, it is not clear to me whether an order passed by the lower appellate Court would fall within the definition of " decree " in Sub-section (2) of Section 2 of the Civil Procedure Code, under which a decree would include the determination of any question within the meaning of Section 47. Secondly, Section 96 of the Code provides that-

(i) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

Assuming that the order appealed from can be described as a decree, is it a decree passed by a Court exercising original jurisdiction That, again, appears to me to be doubtful as the District Court was seized of the subject-matter of its order as an appellate Court. I see, therefore, no sufficient reason for following the earlier decision in Musaji Abdulla v. Damodardas, I.L.R. (1888) 12 Bom. 279. Following Janardan Triumbak v. Martand Triumbak I hold that an appeal does not lie in the present case.


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