LALA HAR NARAIN LAL BAHAL Vs. MATHURA PRASAD

JUDGEMENT

(1.) This is an appeal by a decree-holder against an order of execution Court staying execution of a decree under the Temporary Postponement of Execution of Decrees Act (10 of 1937). The decree is for costs. Two questions arise in this case: (1) whether a decree for costs is one to which the Act applies, and (2) whether an appeal lies from such an order. As regards the first point, it has been held by a learned single Judge in Ex. F.A. No. 217 of Ram Narain V/s. Ashagri Begum, Ex. F.A. No. 217 of 1939 decided on 8 January 1940 that the Act does not apply to a decree for costs. It was observed there: He (learned Counsel) suggests that a decree for costs is a decree for money. In so far as that goes the liability to pay costs was not incurred before the Act came into force.

(2.) As regards the second point, there are conflicting decisions. In S.A. No. 687 of Shib Charan Das V/s. Brij Mohan Singh, reported in it has been held by a learned single Judge that an appeal lies. There it was observed: Learned counsel has referred me to the case in Mangat Rai V/s. Babu Ram , in which it was held that an order for stay did not amount to a decree. I can quite see that ordinarily an order for stay does not amount to a decree because no question between the parties is determined, that is, there is no determination of the right of one party or the other. The Court is merely exercising its discretion. In the case before me, however, the judgment-debtor claimed as of right that the decree could not be executed and the decree-holder claimed that it could be. There was therefore a distinct question of the rights and liabilities of the parties in respect of the execution of the decree and I have no doubt that an appeal lay from the order passed.

(3.) This decision was approved of by a Bench of two Judges in Civil Revision No. 271 of Narottam Das V/s. Ballu Ram Bhagwati Prasad, Civil Revn. No. 271 of 1938, Decided on 20 December 1939. There it was observed: We are informed by learned Counsel appearing for the applicant that it has been held by Allsop J. on 13 December 1939, in S.A. No. 687 of Shib Charan Das V/s. Brij Mohan Singh, reported in that an order on an application of this nature comes within the purview of Section 47, Civil P.C., and that an appeal lies against such an order. It seems to us that the view taken by our learned brother in the case just mentioned is correct.