Nihal Chand, alias Chutto Lal, and Others vs Rameshari Dassee

Tottenham, J.—The order against which this appeal has been preferred purports to have been passed u/s 243 of the Code of Civil Procedure, on the application of the judgment-debtor, on the ground that the judgment-debtor had brought a suit against the present decree-holders and others. The Court, in its discretion, stayed the execution of the present appellants'' decree pending the decision of the regular suit brought by the judgment-debtor. It ordered that the attached property should remain under attachment, but proceeded to strike the execution-case off its file.

It appears to us that the appellants have no right of appeal to this Court in this matter. They contend that it is an order determining a question between themselves and the judgment-debtor u/s 244, and that, that being so, the order amounts to a decree within the meaning of Section 2.

We think that there are two reasons against this contention being allowed. First of all we think that an order staying execution u/s 243 is not one which comes within the purview of Section 244; and secondly, if it could be said to come within the purview of Section 244, we do not think that this order amounts to a decree as defined by Section 2, as it is not an adjudication of any right claimed, nor does it appear to us to be a determination of any question mentioned in Section 244. It seems to us that the Court below has not finally determined any question as between the parties; it has simply postponed the determination of a matter before it. It is quite clear that, unless this order amounts to a decree, there is no appeal against it; for it is not one of those mentioned in Section 588, against which an appeal it allowed as against an order; and we being of opinion that it is not a decree, we are compelled to dismiss the appeal with costs.