SRIMANTU RAJA YARLAGADDA DURGA PRASADA NAYADU Vs. SRIMANTU RAJA YARLAGADDA MALLIKARJUNA PRASADA NAYADU

JUDGEMENT

(1.) This is an appeal under Art. 15 of the Letters Patent against an order made by Mr. Justice Boddam refusing a stay of execution.

(2.) A preliminary objection has been taken that no appeal lies since the order appealed against is not a judgment within the meaning of Art. 5 of the Letters Patent.

(3.) We think the objection is well founded. The order appealed against does not affect the merits of the question between the parties by determining any right or liability in dispute in the suit or appeal. Section 545 of the Civil Procedure Code expressly provides that execution of a decree shall not be stayed by reason only of an appeal having been preferred against the decree, but the Appellate Court may, for sufficient cause, order the execution to ha stayed Section 608 of the Civil Procedure Code, which deals with the powers of the High Court in the case of appeals to the Privy Council, gives a similar discretionary power to the High Court in language which is substantially the same as that used in Section 545. The Calcutta High Court in Mohabir Prosad Singh V/s. Adhikari Kunwuar I.L.R. 21 Calc. 473 has held that an order refusing to stay execution in the exercise of the discretion given to the Court under Section 608 of the Civil Procedure Code is not a decision which affects the merits of any question between the parties by determining a right or liability, and that no appeal from such an order lies under Clause 15 of the Letters Patent. We think this case was rightly decided and that the decision covers the point raised in the present case. The decision of this Court in Ramayyar V/s. Dorasami Ayyar Letters Patent Appeal No. 5 of 1900 appears to us to be an authority for the proposition that no appeal lies under the Letters Patent against an order refusing a stay of execution.