KANHAIYALAL Vs. GORDHAN

JUDGEMENT

(1.) THE appellant has filed this appeal against the order of the Revenue Appellate Authority, Jaipur dated 19th July, 1963 issuing notice to the respondent to show cause why stay of execution of the decree should not be granted in an appeal filed by the appellant before the Revenue Appellate Authority against the decree and judgment of the Assistant Collector, Kishengarh dated the 15th July, 1963 decreeing the respondent's suit for ejectment of the appellant as trespasser over the suit land.

(2.) A preliminary objection was raised by the counsel for the respondent that the appeal was not maintainable as the order appealed against is not appealable. In the first instance order refusing the stay of execution by the appellate court under order 11 Rule 5 of the Civil Procedure Code is a discretionary remedy and no appeal lies against the refusal of such order. In support he cited A. I. R. 1943 Nagpur page 282, A. I. R. 1939 Bombay page 65. Further the counsel pointed out that under order 41 Rule 5 sub-rule 3 that unless certain mandatory conditions are served such as substantial loss incurring to the party, filing an application without unreasonable delay, and furnishing of security, no stay order is to be passed. The counsel also pleaded that even according to the Letters Patent Rules there is no appeal from the judgment of a judge sitting in the single Bench to the Double Bench in cases of stay as the order was not a judgment in the eye of law and in support he cited I. L. R. 1955 Rajasthan page 418 and A. I. R. 1960 Allahabad page 692. The counsel for the appellant's reply was that the provisions of the Civil Procedure Code for appeals against the orders as laid down in Section 104 readwith order 43 Rule 1 are not applicable to the cases under the Tenancy Act where under section 225 of the Raj-asthan Tenancy Act all orders have been made appealable. This distinction has been drawn up by the learned Members of the Board of Revenue in deciding cases in R. R. D. 1961 120 and 1962 R. R. D page 165 where the provisions of the Civil Procedure Code for appeals against the order as referred to above have been held to be inconsistent with the provisions of Section 225 of the Rajasthan Tenancy Act. The counsel further pointed out that all orders under the Rajasthan Tenancy Act have been made appealable. The counsel for the appellant further argued that the order appealed against is no doubt not final, in the sense that the stay application has not been refused, but delay in issuing notice only, and not accepting the stay application, is tantamount to refusal of the stay application and therefore this order was appealable.