PRAN KUMAR DEY Vs. PARITOSH SANYAL

JUDGEMENT

(1.) This Second Miscellaneous Appeal is by the judgment-debtor in a Title Execution Case No. 38 of 1966 before the First Court of Munsif at Krishnanagar against the order of dismissal of the first miscellaneous appeal passed by the Subordinate Judge at Nadia arising out of an order of the learned Munsif of the executing court refusing to stay the execution proceedings on the prayer of the judgment-debtor. The relevant facts may be stated in brief. A decree was obtained against the judgment-debtor and the title execution case was started for execution of the said decree for recovery of possession. The judgment-debtor, it appears, filed a suit for declaration that the decree obtained by the decree-holder-respondents was a nullity. Before that in connection with the decree the defendant went up to the High Court in second appeal, but was unsuccessful. The defendant got sufficient time to vacate the premises in favour of the plaintiffs. The learned Munsif of the executing court considered the application for stay of execution till the disposal of the suit filed by the judgment-debtor for a declaration that the decree is a nullity. On consideration of the facts and circumstances, the learned Munsif felt that there was no just reason for staying the execution and that in case of such stay, the injury would be done to the decree-holder. The executing court, therefore, did not think it just to stay the proceedings and rejected the prayer of the judgment-debtor. Against that order, the first miscellaneous appeal was filed before the District Judge and the miscellaneous appeal was disposed of by the Subordinate Judge on 15-3-1976. On an objection from the side of the decree-holder it was held by the learned Subordinate Judge that the order complained against was not an appealable order under Order 43, Rule 1 of the Civil P. C. The application for stay was filed by the judgment-debtor under Order 21, Rule 29 of the Civil P. C. and as such the said order refusing to stay execution proceedings was not appealable. The appeal was, therefore, dismissed. It may be noted that the learned Subordinate Judge held that the application was not under Section 47 of the Civil P. C. and, therefore, the question of appeal did not arise. Against the dismissal of the appeal on the ground stated, the present second miscellaneous appeal was filed.

(2.) Mr, N. K. Mitra appears on behalf of the appellant and Mr. S. P. Mitter assisted by Mr. S. P. Roy Chowdhury opposed the appeal.

(3.) At the very outset Mr. S. P. Mitter contended that the instant appeal is not maintainable as the order passed by the executing court which was the subject-matter of the first miscellaneous appeal was not appealable and, therefore, the present appeal should be dismissed. Mr. N. K. Mitra, the learned Advocate appearing for the appellant has submitted that in fact this was virtually an application under Section 47 of the Civil P. C. and as such the order was appealable. In view of the facts already stated, it is quite clear that the judgment-debtor wanted to have the execution proceedings stayed on the ground that he had already filed a suit for a declaration that the decree was a nullity. The question, therefore, is whether the application of the judgment-debtor can be treated as an application under Section 47 of the Civil P. C. or that the order refusing to stay the execution proceeding is an order passed under Section 47 of the C. P. C. In this connection the decision of the Division Bench of this Court in the case of Rama Prosad v. Anukul Roy Chowdhury reported in 20 Cal LJ 512 : (AIR 1915 Cal 122) may be looked into. I am conveniently quoting the relevant portion : On the other hand, when the Court has refused to stay execution of a decree, on application made, not on the ground that the decree was incapable of execution, but on the ground that as a proceeding to test the validity of the decree was still pending, no execution should be allowed till its termination, it cannot be said that the order does in any way determine a question relating to the rights and liabilities of the parties with reference to the relief granted by the decree. An order of this nature is of an interlocutory character and does not involve, directly or indirectly, an adjudication of the rights and liabilities of the parties, Mohabir Prosad v. Adhikary Kunwar, (1894) ILR 21 Cal 473; Srimantu v. Sri-mantu, (1901) ILR 24 Mad 358; Srinivas Prosad v. Kesho Prosad (1911) 14 Cal LJ 489. We are consequently of the opinion that the order of the Subordinate Judge refusing to stay execution is not an order under Section 47, which has the characteristics of a decree under Section 2 and is appealable as such.