KOKJE, J. - (1.) The office has pointed out defect in this appeal that the special appeal has been filed against an order dated 29-4-97, which has been passed on Misc. Application. Therefore, the special appeal is not maintainable under cl. (18) of Rajasthan High Court Ordinance, 1949.
(2.) We have heard learned counsel for the appellant on maintainability of appeal. He submitted that the order, challenged in appeal, falls in the category of "judgment". He has also cited the decision of Supreme Court in Asrumati Devi v. Kumar Rupendra Deb Raikot, AIR 1953 SC 198; a decision of Rajasthan High Court in Sampat Raj v. Ladu Ram, AIR 1968 Raj 179; and the decision of Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786.
(3.) We find that the case in hand is distinguishable from the cases cited and the decisions do not support maintainability of this appeal. This appeal is preferred against the order rejecting an application filed under O. 45, R. 13, C. P. C., by which the appellant prayed for stay of execution proceeding till 31st July, 1997 to enable them to file the Special Leave petition before the Supreme Court and to obtain stay order in that appeal. The rejection of such an application can by no stretch of imagination be said to be a "Judgment". the test for determining whether any order is judgment or not is laid down in case of Shah Babulal Khimji, AIR 1981 SC 1786 (supra), the relevant portion is reproduced hereunder (para 119) :- "That the Trial Judge being a senior Court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment; otherwise the appellate Court (Division Bench) will be flooded with appeals from all kinds of orders passed by the Trial Judge. The Courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.";