JANARDAN TRIMBAK GADRE Vs. MARTAND TRIMBAK GADRE

JUDGEMENT

(1.) The plaintiff applied in darkhatt No. 138 of 1918 for a stay of execution proceeding for the execution of the decree in Suit No. 69 of 1915, pending the disposal of his Suit No. 110 of 1918 in which he prayed for a declaration that the decree in Suit No. 69 of 1915 was void and incapable of execution as against him.

(2.) The First Class Subordinate Judge of Poona made an order for stay of execution in darkhast No. 138 of 1918 pending the disposal of the plaintiff s suit, on the plaintiff s furnishing security to the extent of Rs. 11.000.

(3.) The question now arises whether that is an appealable order. It can only be appealable if it is an order under Section 47. In Section 47 no mention is made of an order for stay of execution. The words which appear at the end of Section 244 (c) in the Code of 1882, "or to the stay of execution thereof" have been omitted. It is argued that the words are omitted because they are unnecessary, the question regarding the stay of extension being a question regarding the execution of a decree. Reference must be made to Section 2 in which "a decree" is defined. It is provided that "decree shall be deemed to include the rejection of a plaint and the determination of any (question within Section 47," It is therefore, intended that orders made under Section 47, as being in the nature of decrees, should be appealable as decrees. It is difficult to imagine that the Legislature thought that an order for the stay of execution would be considered in any way as in the nature of a decree and that, therefore, it should be deemed to be included within the term decree . A question relating to the stay of execution is within the discretion of the Court to which the application is made, and it is certainly not desirable to extend the number of appealable orders unless there is distinct authority for such an extension.