O. Steel and Co. vs Ichchamoyi Chowdhrain and Another

McDonell and Beverley, JJ.—This is an appeal against an order passed u/s 243 of the Civil Procedure Code. A preliminary objection has been taken that no appeal will lie against an order made under that section, and we have been referred to a decision to that effect in Nihal Chand v. Rameshari Dassee ILR Cal. 214. We are not disposed to follow that decision, partly because we think that, under the definition of decree in Section 2 of the Civil Procedure Code, the order made u/s 243 did determine a question mentioned or referred to in Section 244, viz., a question relating to the execution of the decree; that is to say, the order determined the question whether the decree should be executed or whether execution should be stayed. In support of this view we find several reported decisions--Kristomohiney Dassee v. Bama Churn Nag Chowdhry ILR Cal. 733 Luchmeeput Singh v. Sitanath Doss ILR Cal. 477 and Ghazidin v. Fakir Baksh ILR All. 73. We are also aware of other decisions to the same effect which have not been reported. On the other hand, the case to which we have been referred is, so far as we are aware, the only one to the opposite effect, and the reasons given therein do not altogether commend themselves to us. Then, on the merits, it appears that the decree in this case was on account of costs which were decreed to the appellants in consequence of the respondent''s failure in a previous suit in respect of the same matter. The respondent was allowed liberty to bring a fresh suit, and the costs of the previous proceedings were given against him. But apparently by some oversight it was not made a condition, as it usually is in such cases, that payment of the costs should be a condition precedent to the institution of the fresh suit. We think, however, that this was a case in which it was incumbent upon the Court to see that the costs were paid within a reasonable time, and not a case in which further time should be given merely because a fresh suit has been instituted. We, therefore, set aside the order of the lower Court staying the execution proceedings, and direct that these proceedings do proceed. The appellants will be entitled to their costs in this Court.