HUSAIN BHAI Vs. BELTIE SHAH GILANI

JUDGEMENT

(1.) The order against which this first appeal is preferred is an order staying execution of a decree from the 23 of July, 1923, to the 6 of September, 1923, on payment of Rs. 5,000 by the judgment-debtor. The period to which the order relates having long since expired, the appeal has really become superfluous, but the appellant decree-holder desires a decision on it because he contends that the court below had no power to stay execution and because four successive orders of stay for limited periods were passed by the same Subordinate Judge, in each case on payment of Rs. 5,000. The amount of the decree was Rs. 74,558 and it was passed on the 28 of March, 1922. The judgment-debtor contended that the decree-holder owed him money in Bombay and he asked for stay in order either to file a suit or to institute arbitration proceedings under an arbitration agreement for the recovery of this amount.

(2.) The respondent takes a preliminary objection that no appeal lies, as the order complained of does not amount to a decree within the meaning of Secs.2 and 47 of the Civil P. C. and it is not one for which an appeal is provided under Order XLI1I of the first schedule to the Code. The principles which should govern our decision of this objection are laid down in the case of Mukhtar Ahmad V/s. Muqarrab Husain (1912) I.L.R. 34 All. 530. It is pointed out in that judgment that the language of Section 47 is very wide and if taken in its literal sense will cover every order of an interlocutory nature that may be passed in execution proceedings. The particular order which was being construed in Mukhtar Ahmad's case was an order cancelling the dismissal of execution proceedings for default and holding that the previous attachment still subsisted. It was held that this order did not come under Section 47. The court adopted the judgment of Mr. Justice Banerji in a Calcutta case under the old Code, in which two tests were laid down for determining whether a particular order came under Section 47 (old Section 244) or not. The first is thus stated: An order in execution proceedings can come under Section 244 only when it determines some question relating to the rights and liabilities of parties with reference to the relief granted by the decree; not when, as in this case, it determines merely an incidental question as to whether the proceedings are to be conducted in a certain way.

(3.) The second test, deduced from the language of the section which enacts that questions arising under it "shall be determined by the court executing the decree and not by a separate suit", was that the questions contemplated by the section must be of such a nature that it is possible to suppose that but for the section they could have formed the subject of determination in a separate suit. Judging by both these tests, the order before us is not one coming under Section 47. It does not determine the rights and liabilities of the parties with reference to the relief granted by the decree, but merely the incidental question whether execution should proceed at once or after an interval of two months. It certainly could not have formed the subject of a separate suit.