- (1.) THE appellant has filed this appeal against the order of the Revenue Appellate Authority, Jaipur dated 19th July, 1963 issuing notice to the respondent to show cause why stay of execution of the decree should not be granted in an appeal filed by the appellant before the Revenue Appellate Authority against the decree and judgment of the Assistant Collector, Kishengarh dated the 15th July, 1963 decreeing the respondent's suit for ejectment of the appellant as trespasser over the suit land.
(2.) A preliminary objection was raised by the counsel for the respondent that the appeal was not maintainable as the order appealed against is not appealable. In the first instance order refusing the stay of execution by the appellate court under order 11 Rule 5 of the Civil Procedure Code is a discretionary remedy and no appeal lies against the refusal of such order. In support he cited A. I. R. 1943 Nagpur page 282, A. I. R. 1939 Bombay page 65. Further the counsel pointed out that under order 41 Rule 5 sub-rule 3 that unless certain mandatory conditions are served such as substantial loss incurring to the party, filing an application without unreasonable delay, and furnishing of security, no stay order is to be passed. The counsel also pleaded that even according to the Letters Patent Rules there is no appeal from the judgment of a judge sitting in the single Bench to the Double Bench in cases of stay as the order was not a judgment in the eye of law and in support he cited I. L. R. 1955 Rajasthan page 418 and A. I. R. 1960 Allahabad page 692. The counsel for the appellant's reply was that the provisions of the Civil Procedure Code for appeals against the orders as laid down in Section 104 readwith order 43 Rule 1 are not applicable to the cases under the Tenancy Act where under section 225 of the Raj-asthan Tenancy Act all orders have been made appealable. This distinction has been drawn up by the learned Members of the Board of Revenue in deciding cases in R. R. D. 1961 120 and 1962 R. R. D page 165 where the provisions of the Civil Procedure Code for appeals against the order as referred to above have been held to be inconsistent with the provisions of Section 225 of the Rajasthan Tenancy Act. The counsel further pointed out that all orders under the Rajasthan Tenancy Act have been made appealable. The counsel for the appellant further argued that the order appealed against is no doubt not final, in the sense that the stay application has not been refused, but delay in issuing notice only, and not accepting the stay application, is tantamount to refusal of the stay application and therefore this order was appealable. We have considered the arguments advanced from both the sides on this preliminary point relating to the maintainability of the appeal against the impugned order. There is no doubt that the provisions of appeal against the order as envisaged in Section 225 of the Rajasthan Tenancy Act are wider in scope than those found in the Civil Procedure Code. Section 104 read with Order 43 Rule 1 of the Civil Procedure Code expressly lays down the categories of orders against which an appeal would lie. There is no such distinction under the Rajasthan Tenancy Act. Every order no doubt has been made appealable and the ruling of the Board of Revenue cited by the learned counsel for the appellant correctly reflects the position of law relating to appeals against the orders. The ruling cited by the counsel for the respondent of the Rajasthan and Allahabad High Court under the Letters Patent Rules of the High Court that unless a judgment has been pronounced by a Judge sitting in a Single Bench in the High Court of Judicature, no appeal would lie. It was for this reason that an order on an application for stay was not considered appealable. As regards the rulings of Nagpur & Bombay High Courts referred to above, these will not apply to this case under the Tenancy Act because appeals against the refusal of stay order were prohibited under the provisions of the Civil Procedure Code. Therefore the position now emerges before us is that appeal against the orders passed under the Tenancy Act would no doubt lie. The question now immediately before us in this case is whether the impugned order is an " order" within the meaning of Section 2 Sub-Section 14 of the Civil Procedure Code or not. The term 'order' under the aforesaid section is defined as under: - Sec. 2 Sub-Sec. (14) "order means a formal expression of any decision of a Civil Court which is not a decree. " If the impugned order is tested with reference to the definition provided under the Civil Procedure Code it will appear that the impugned order is not a formal expression of any decision of the Court below. In fact this was purely an interlocutory order by which the Court arrived at no decision. The argument of the learned counsel for the appellant that the Court wanted to put off the issue of stay of execution of decree by passing this order should be considered as the stay application having been refused. This in our opinion is not a correct interpretation of the order passed by the Revenue Appellate Authority. If the appellant was in haste to obtain the stay order this point should have been properly raised before the appellate Court and an earlier date for decision on the stay application should have been taken and the appellant or his counsel should have obtained the formal decision on the stay application before coming to this Court. The impugned order in our opinion is clearly not an order within the meaning of Sec. 2 Sub-Sec. of the Civil Procedure Code or under Sec. 225 of the Rajasthan Tenancy Act. The word order used in the aforesaid section of the Rajasthan Tenancy Act must be a final and a formal order conveying the decision of the Court. This order not being so, this preliminary objection of the counsel for the respondent must prevail. The appeal is rejected. .;