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Judgment
Horwill, J.—An application was filed by the petitioners in the Court of the Subordinate Judge of Bezwada to stay the execution of the
decree of that Cour pending in appeal to the District Court, Kistna. Despite the mandatory provisions of Order 41, Rule 6(2) of the Code of Civil
Procedure, the stay was refused. Hence this petition.
A preliminary objection has been taken that no revision petition lies; because the order complained of is an appealable one, it being a decree,
since it falls within the mischief of Section 47 of the Code of Civil Procedure.
In the old Code u/s 244 "" the executing Court was bound to decide all questions arising between the parties to the suit in which a decree was
passed relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof. "" The words in italics were omitted from
the revised provision in the new Code (Section 47); and it naturally became a matter of contention whether the omission of these words meant that
questions relating to the stay of execution of a decree were deliberately excluded by the Legislature from the scope of Section 47, or whether the
words had been omitted because it was the well-settled law that questions relating to the stay of execution were questions relating to execution.
The former view was taken by the High Court of Allahabad and in some cases in Calcutta, while the latter view was taken consistently in Lahore,
as well as in Subramania Pillai v. Kumaravelu Ambalam ILR (1916) Mad. 541. In Shivabasappa Chinnappa v. Harigowda Hoochagowda ILR
(1933) Bom. 485, the question was left open. This question is of importance, because it would determine whether an order relating to the stay of
execution is appealable or not. After four judges in four decisions of the Lahore High Court had all agreed that such an order was appealable, the
matter was very fully discussed in Mst. Durga Devi v. Hans Raj ILR (1939) Lah. 402, in the light of the decision of that Court and of later
decisions in other High Courts; and the learned Judges held that such an order was appealable. They held that if an order was to amount to a
decree, it had (1) to come within the mischief of Section 47 and (2) to con-clusively determine the question. The learned Judges were of opinion
that an order staying execution related to the execution of a decree and, further, that it was a conclusive determination of a question; because if a
decree were stayed it put an effective end to the execution of the decree. If the appeal were dismissed then the decree to be executed in the future
would be the appellate Court decree. On the other hand, if the appea were allowed, there could be no further execution; so in any event, the
determination was final and put an end to the execution of the decree of the trial Court.
There has been no direct decision of the Madras High Court on this point but it was decided in Subramania Pillai v. Kumaravelu Ambalam ILR
(1916) Mad. 541 that the scope of Section 47, CPC with regard to petitions for stay of execution was the same as the old Section 244 and that
the omission in the new Code of any reference to stay of execution was because it would be superfluous. It seems to me unnecessary to discuss as
fully as was done in Mst. Durga Devi v. Hans Raj ILR (1929) Lah. 402, question whether, as regards the Court passing the order, the order
conclusively determines the question. Section 47 says that:
all questions... relating to the execution... of the decree, shall be determined by the Court....
and Section 2(2) says:
the term ''decree'' shall be deemed to include... the determination of any question within Section 47....
The learned advocate for the petitioner sought to distinguish Mst. Durga Devi v. Hans Raj ILR (1929) Mah. 402 by pointing out that the
argument relationg to the applicability of Section 2(2) of the Code would apply to an order of stay of execution, but not to an order refusing stay of
execution. In the former case, as the learned Judges pointed out, no further execution of the decree of the trial Court that passed it would be
possible; but it stay was refused, then no matter was finally determined, because it would be open to the judgment-debtor to apply again for a
Stay. There is some force in this argument; but if all questions determined u/s 47, Civil Procedure Code, relating to execution... of the decree are
decrees within the meaning of Section 2(2) then no distinction can be drawn between an order directing that execution shall be stayed and an order
directing that execution shall proceed.
The petition is therefore dismissed with costs and not maintainable.