Sitaram Agarwalla vs Md. Kerfan Ali and another

Thadani, C.J.—This is a second appeal from the order of the learned Munsiff, Nowgong, dated 3-6-1948 by which he stayed the execution of the decree passed by him in R. Suit No. 20 of 1940.

The decree, holder, Sitaram Agar walla, brought a suit as far back as 1940 against (1) Kerfan Ali and (2) pro forma defendant Furkon Ali, for possession and recovery of a sum of Rs. 90 as arrears of rent, and in due course obtained a decree. Toe judgment-debtors preferred an appeal from the judgment and decree, but their appeal was dismissed. Shortly afterwards the judgment-debtors filed a suit against the decree-holder in the Court of the Munsiff, Nowgong, being Suit No. 4 of 1943. This suit was eventually dismissed with costs. The judgment-debtors then brought another suit in 1947, in the Court of the Subordinate Judge of Nowgong and surprisingly enough, prayed for the stay of the execution of the decree in Suit No. 20 of 1940 on the file of the Munsiff of Nowgong. The learned Subordinate Judge of Nowgong, by his order, dated 20-5-48, equally surprisingly stayed the execution of the decree passed in suit No. 20 of 1940. Apparently, acting upon this order, passed by the learned Subordinate Judge, the Munsiff passed the order against which this appeal has been preferred. The order passed by the learned Munsiff on 8-6-48 is in these terms : "Seen the order of the Subordinate Judge passed in T. Suit No. 21 of 1947 on 20-5-48. Execution stayed till disposal of suit accordingly."

A preliminary objection has been taken to the maintainability of this appeal. It is argued on behalf of the judgment-debtors that the order staying execution of the decree--an order which, on the facts of this case, must be regarded as an order under the provisions of O. 21, R. 29, Civil P.C.--is not an appealable order within the meaning of S. 47 read with S. 2, Civil P.C. In support of his contention, Mr. Ghose for the judgment-debtor has relied upon a decision of the Calcutta High Court reported in Rajendra Kishore v. Mathura Mohan, 25 Cal. W.N. 555. The case before the learned Judges of the Calcutta High Court was a case in which stay of execution had been refused. The learned Judges referred to the corresponding S. 244 of the Code of 1882, and the addition of the words "or relating to the stay of execution thereof" in the Act of 1888, They pointed out that in the present Code of 1908, the words ''relating to the stay of execution'' have been omitted from S. 47, and observed :

We are, therefore, constrained to the conclusion that a change in the law was intended, and that orders staying or refusing to stay execution are no longer to be considered as orders determining questions relating to the execution of the decree.

An identical view has been taken by the Bombay High Court in a case reported in Janardan Trimbak Gadre Vs. Martand Teimbak Gadre, . That case related to an order granting stay of execution. A single Judge of the Rangoon High Court in the case reported in U San Wa v. U Chit San, AIR 1931 Rang. 221, has also taken the same view as the Bombay and the Calcutta High Courts. The case reported in Rama Prasad v. Anukul Chandra, 20 Cal. L.J. 612, was also referred to by Mr. Ghose in support of his contention that from an order staying execution of a decree or refusing to stay execution of a decree, no appeal lies.

Mr. Lahiri for the decree-holder has on the other hand, referred us to a decision of the Lahore High Court reported in AIR 1930 187 (Lahore) , in which the learned Judges held that an order staying execution of a decree till the decision of appeal, falls under S. 2 (2) read with S. 47, Civil P.C., and is appealable as a decree. Tek Chand J., took the view :

that an order, which stays execution of a decree, pending disposal of the appeal against that decree, finally and conclusively determines (so far as the Court passing such order is concerned), the very important right of the decree-holder to roap forthwith the fruits of that decree. It is no doubt time, that the execution proceedings may, and will be revived after the disposal of the appeal. But in that event, and from that stage, the elocution will really be that of the decree of the appellate Court which will have superseded the decree of the trial Court of which execution was stayed by the order in question.

Apparently, the learned Judge construed the order staying execution of a decree pending the disposal of the appeal as an order from which an appeal lies, on the ground that it conclusively determined a right, so far as the Court passing the decree was concerned, as, after the appeal is decided the decree to be executed is the decree of the Appellate Court, and not the decree of the Appellate Court. If the decision is based on this ground--and we think it is--it is not an authority for the facts of the case before us. In the present case, the order staying execution of the decree has not been made pending an appeal, but manifestly purports to be made in terms of O. 21, R. 29, Civil P.C., in that against the decree holder there is a suit brought by the judgment-debtor in the Court of the Subordinate Judge, Nowgong. The decree in the present case which will ultimately be executed, is not a decree of another Court, but a decree of the Munsiff passed in suit No. 20 of 1940.

Mr. Lahiri for the decree-bolder conceded that if a question is one which cannot be regarded as a question determined within the meaning of S. 47 Civil P.C., an appeal will not lie. For instance, lie conceded that an order adjourning execution proceedings for hearing till another day not be regarded as determining a question within the meaning of S. 47. He also conceded that if there is a provision in the decree in the nature of an impediment to the immediate execution of a decree, the refusal of the Court to execute the decree forthwith will not be regarded as a question determined within the meaning of S. 47, Civil P.C.

If then staying execution of a decree in consequence of an impediment in the decree itself to the immediate execution of it, is not a question determined relating to execution of a decree within the meaning of S. 47, Civil P.C., we do not think that an order made under O. 21, R. 29, Civil P.C., can be differently interpreted, O. 21, R. 39, Civil P.C., empowers the Court to stay execution of a decree passed by itself, when there is a suit pending against the decree-holder of his Court, and brought by the judgment-debtor in another Court. In other words, the stay of execution of the decree in this case ordered by the learned Munsiff in accordance with R. 29 of O. 21, Civil P.C., operates as an impediment to the execution of the decree in R. Suit No. 20 of 1940. By reason of this impediment, far from determining any question relating to the execution of the decree, the Munsiff has abstained from deciding any question relating to the execution of the decree until the impediment is removed by the decision of the suit brought by the judgment-debtors against the decree-holder in the Court of the Subordinate Judge, Nowgong.

Similarly, the case reported in Veera Raghavayya v. Kali Rattamma, AIR 1949 Mad. 524, upon which Mr. Lahiri relied, is a case where the order in question was made under the provisions of O. 41, R. 6, Civil P.C., and not under the provisions of O. 21, R. 29, Civil P.C. In the case reported in Sundaresan v. Venkor tesiah, AIR 1949 Mad. 196, it does not appear that the order was made under O. 21, R. 29, Civil P.C. Finally, Mr. Lahiri has referred us to a decision of the Calcutta High Court reported in Abdul Washe v. Brojendra Mohan, 49 Cal. W.N. 532. That was a case in which an order of a Civil Court refusing to stay execution, notwithstanding the receipt of a notice under S. 34, Bengal Agricultural Debtors Act, 1935, was involved. Mukherjea J. (now a Judge of the Supreme Court of India) held that the order came within the purview of S. 47, Civil P.C., and was appealable. It is manifest that the decision proceeds upon a violation of the provisions of S. 84, Bengal Agricultural Debtors Act, 1935. Section 84 makes it obligatory upon a Court, on receipt of a notice, to stay the execution proceeding. In other words, a question finally determining the right of the debtor to have the execution of the decree stayed, was disposed of by the refusal of the Civil Court to stay the decree. We do not think the decision reported in 49 Cal. W.N. 533, is an authority for the facts of the case before us.

It was argued by Mr. Lahiri that the decision of Mukherjea J. applies to all orders--whether staying or refusing to stay execution of a decree--irrespective of the fact that the decision was given in a case in which S. 34 , Bengal Agricultural Debtors Act, 1935, was involved. We are unable to accept this contention. If the view expressed by Mukerjea J., were intended to apply to all orders involving stay or refusal to stay execution of a decree, we think, the learned Judge would have referred to the previous decision of the Calcutta High Court reported in Rajendra Kishore v. Mathura Mohan, 25 Cal. W.N. 555, and distented from it. The case reported in Chidambaram Chettiar v. Krisha Vathiar, AIR 1918 Mad. 1174 (F.B.), has no application to the facts before us.

In our view, an order staying execution of a decree made under the provisions of O. 21, R. 29, Civil P.C., is not an order determining a question relating to the execution of a decree within the meaning of S. 47 read with S. 2, Civil P.C.

As a last resort, Mr. Lahiri contended that if no appeal lay, this Court should treat the appeal as a revision application and set aside the order of the learned Munsiff on the ground that he has merely acted upon the order of the learned Subordinate Judge without bringing his own mind to bear upon the question of stay. Mr. Lahiri points out that the order passed by the Subordinate Judge of Nowgong could not possibly by made under the provisions of O. 21, R. 29, Civil P.C., as the Subordinate Judge was not the executing Court.

While we agree that the Subordinate Judge of Nowgong had no jurisdiction to pass an order under O. 21, R. 29, Civil P.C., we do not think we will be justified in treating the appeal as a revision application in view of the fact that against the order passed by the learned Subordinate Judge on 20-5-48 no appeal or revision was preferred. Even if we were to treat the appeal as a revision application and set aside the order of the Munsiff, dated 8-6-48 the order passed by the learned Subordinate Judge, dated 20-5-48, will remain an operative order. It would be clearly improper on our part to treat the appeal as a revision application in view of the subsistence of a valid order passed by the learned Subordinate Judge in May 1948.

The result is that the appeal fails as incompetent and is dismissed with costs.

Deka J.

I agree.