SUBRAMANIA PILLAI Vs. KUMARAVELU AMBALAM ALIAS VEKRKARUPPIAH KANGANI

JUDGEMENT

(1.) THE attention of the Subordinate Judge was apparently not drawn to the decision in Rukmani Ammal v. Krishnamachary (1911) 9 M.L.T. 464 where Subrahmanya Ayyar and Boddam, JJ., follow the Bombay ruling in Laldas v. Kishondas (1898) I.L.R. 22 Bom. 463. Mr. Anantakrishna Ayyar argues that these two decisions had reference to the language employed in Section 244 of the Code of Civil Procedure of 1882 which in express terms included stay of execution among questions relating to execution. We are not satisfied that the omission of these words in Section 47 of the present Code is any indication that matters relating to stay of execution are not within the section. THE words omitted may have been regarded as superfluous; moreover the plea that the decree should not be enforced certainly relates to execution, whether it relates to stay of execution or not. It is not analagous to the plea of fraud in obtaining a decree because where fraud is set up, the decree is sought to be avoided and not to foe executed; but where an agreement is pleaded, it only affects the enforceability of the decree; we think the decision in Laldas v. Kishondas (1898) I.L.R. 22 Bom. 463 is correct and are not prepared to follow Hassan Ali v. Ganzi Alim (1914) I.L.R. 31 Calc. 179. We must set aside the order of the Subordinate Judge and direct him to dispose of the appeal on the merits. Costs will abide the result.