MANGAT RAI Vs. BABU RAM

JUDGEMENT

(1.) This is an execution first appeal arising out of a mortgage decree. The appeal purports to have been preferred from an order dated 19 December 1927. That order merely was one rejecting an application for stay of the sale. It is clear to us that such an order is not appealable. It did not involve any question relating to the execution of the decree which would amount to an adjudication conclusively determining the rights of the parties with regard to any of the matters in controversy. Section 47 has to be read with Section 2, Civil P.C., and reading the two sections together it is obvious that every order passed by an execution Court is not necessarily appealable. It is only appealable when it determines the rights of the parties with regard to any matter in controversy. A refusal to postpone a sale did not determine the rights of the parties within the meaning of that section. We may refer to the case of Husain Bhai V/s. Beltie Shah Gilani A.I.R. 1924 All. 808 and Muhammad Zakaria V/s. Kishan Narain .

(2.) The learned advocate for the appellant has relied on the case of Shiam Lall v. Roshan Lal [1916] 14 A.L.J. 363. Piggott, J., in that case did not express any final opinion on the question whether an order passed in the course of proceedings held under Order 21, Rule 26 was appealable. Walsh, J., however, thought that because there were 15 paras. of controversial pleadings in the objection their dismissal was a judicial decision. In the present case a refusal to postpone the sale did not amount to a final judicial decision.

(3.) There are other grounds taken in the memorandum of appeal, but they apparently were not pressed before the Court below, for there is no reference to them in the order and Mr. Johari, on behalf of the appellant, is unable to state that they were actually pressed before the Court below.