Thadani, C.J. -
(1.) THIS is an appeal from the order of the learned Subordinate Judge, Cachar, U.A.D., dated 4 -7 -1849, by which he stayed execution proceedings in execution Case No. 41 of 1948, on the judgment -debtor furnishing security within 15 days, and ordered "that, in default, the properties were to be sold on 18th July, 1949, at 12 noon." Apparently the judgment -debtor failed to furnish security and the property was ordered to be sold, and the D.H. was permitted to bid at the auction.
(2.) MR . Chaudhuri for the respondents has taken a preliminary objection, namely, that no appeal lies against the order appealed from. It is not disputed by the appellant's advocate that the order appealed from was made upon an application which must be regarded as an application under Order 21, Rule 29, C.P. Code. Mr. Chaudhuri for the respondents contends that there is no provision in the C.P. Code providing for an appeal from an order made under Order 21, Rule 29, and that Section 47 of the Code has no application to an order made under Order 21, Rule 29, C.P.C., as an application under Order 21, Rule 29 , is not an application relating to the execution, discharge or satisfaction of a decree, but merely an application to stay the execution of a decree; assuming that an application for stay of execution made under Order 21, Rule 29, C.P. Code, is to be regarded as an application relating to the execution of a decree, execution was stayed in the present case on condition that the applicant furnishes security within 15 days, and that as he failed to furnish security, the decree was allowed to be executed by sale of the property attached; in other words, the appeal is an appeal from an order refusing to extend time for furnishing security and directing that the property be sold. Such an order is not an appealable order. In support of his contention, Mr. Chaudhuri has referred to a case reported in 'Janardan Triumbak v. Martand Triumbak' : AIR 1921 Bom 208, in which Macleod, C.J. observed:
It is difficult to imagine that the Legislature thought that an order for the stay of execution would be considered in any way as in the nature of a decree, and that, therefore, it should be deemed to be included within the term 'decree.' A question relating to the stay of execution is within the discretion of the Court to which the application is made, and it is certainly not desirable to extend the number of appealable orders unless there is distinct authority for such an extension. I note this is the view taken by Mr. Mulla in his Commentary while the opposite view is taken by Mr. Woodroffe. The appeal, therefore, must be dismissed with costs.
Faweett, J. agreeing with MacLeod, C.J., observed:
I would only add one further argument in favour of the view that no appeal lies. No doubt the words "questions relating to the execution of a decree" are very wide and 'prima facie' cover a question regarding stay of execution of a decree. But in construing the words of Section 47, the Court is entitled to have regard to the fact that the corresponding section of the old Code contains an express reference to a stay of execution, which has been omitted in the present section. I do not think that this omission is necessarily due to its being considered that the previous words of the section were wide enough to cover this particular question. I think it is very likely that it was considered that a suit would never be brought in regard to the mere question of a stay of execution, and that it was therefore, unnecessary to make the section cover such a question.
(3.) THE Calcutta High Court in a case reported in 'Rajendra Kishore v. Mothura Mohan', AIR 1920 Cal 71, has also taken the view that
Orders staying or refusing to stay execution of a decree are not orders determining questions relating to the execution of the decree within the meaning of Section 47 , and are therefore, not appealable.
An identical View was taken in a case reported in 'U San Wa v. U Chit San', AIR 1931 Rang 221.;