SITARAM AGARWALLA Vs. MD. KERFAN ALI AND ANOTHER
HIGH COURT OF GAUHATI
Md. Kerfan Ali And Another
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Thadani, C.J. -
(1.) THIS is a second appeal from the order of the learned Munsiff, Nowgong, dated 3 -6 -1948 by which he stayed the execution of the decree passed by him in R. Suit No. 20 of 1940.
(2.) THE decree, holder, Sitaram Agar walla, brought a suit as far back as 1940 against (1) Kerfan Ali and (2) pro forma defendant Furkon Ali, for possession and recovery of a sum of Rs. 90 as arrears of rent, and in due course obtained a decree. Toe judgment -debtors preferred an appeal from the judgment and decree, but their appeal was dismissed. Shortly afterwards the judgment -debtors filed a suit against the decree -holder in the Court of the Munsiff, Nowgong, being Suit No. 4 of 1943. This suit was eventually dismissed with costs. The judgment -debtors then brought another suit in 1947, in the Court of the Subordinate Judge of Nowgong and surprisingly enough, prayed for the stay of the execution of the decree in Suit No. 20 of 1940 on the file of the Munsiff of Nowgong. The learned Subordinate Judge of Nowgong, by his order, dated 20 -5 -48, equally surprisingly stayed the execution of the decree passed in suit No. 20 of 1940. Apparently, acting upon this order, passed by the learned Subordinate Judge, the Munsiff passed the order against which this appeal has been preferred. The order passed by the learned Munsiff on 8 -6 -48 is in these terms : "Seen the order of the Subordinate Judge passed in T. Suit No. 21 of 1947 on 20 -5 -48. Execution stayed till disposal of suit accordingly." A preliminary objection has been taken to the maintainability of this appeal. It is argued on behalf of the judgment -debtors that the order staying execution of the decree - -an order which, on the facts of this case, must be regarded as an order under the provisions of O. 21, R. 29, Civil P.C. - -is not an appealable order within the meaning of S. 47 read with S. 2, Civil P.C. In support of his contention, Mr. Ghose for the judgment -debtor has relied upon a decision of the Calcutta High Court reported in Rajendra Kishore v. Mathura Mohan,, 25 Cal. W.N. 555. The case before the learned Judges of the Calcutta High Court was a case in which stay of execution had been refused. The learned Judges referred to the corresponding S. 244 of the Code of 1882, and the addition of the words "or relating to the stay of execution thereof" in the Act of 1888, They pointed out that in the present Code of 1908, the words 'relating to the stay of execution' have been omitted from S. 47, and observed :
We are, therefore, constrained to the conclusion that a change in the law was intended, and that orders staying or refusing to stay execution are no longer to be considered as orders determining questions relating to the execution of the decree.
(3.) AN identical view has been taken by the Bombay High Court in a case reported in Janardhan v. Martand, : A.I.R. 1921 Bom 208. That case related to an order granting stay of execution. A single Judge of the Rangoon High Court in the case reported in U San Wa v. U Chit San,, A.I.R. 1931 Rang. 221, has also taken the same view as the Bombay and the Calcutta High Courts. The case reported in Rama Prasad v. Anukul Chandra,, 20 Cal. L.J. 612, was also referred to by Mr. Ghose in support of his contention that from an order staying execution of a decree or refusing to stay execution of a decree, no appeal lies.;
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