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inayat Beg and anr. Vs. Umrao Beg - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1930All121
Appellantinayat Beg and anr.
RespondentUmrao Beg
Excerpt:
- - the view taken by the learned subordinate judge on this point was perfectly correct......appellant has urged that the application should be treated as if it had been made under order 21 rule 29, civil p.c. in the first place the application did not purport to have been made under that rule, and did not ask for a stay of the execution. in the second place, even if it had been under that rule, no appeal would lie from an order refusing it. an order refusing to stay execution is not a decree within the meaning of section 2, civil p.c. in the third place that rule does not apply to the facts of this case, because the defendant was not the holder of a decree of the court in which the suit was pending and to which the application was made. the rule is applicable only as regards the holder of a decree of 'such court,' the appeal is accordingly dismissed with costs, including in.....
Judgment:

1. This is an appeal from an order refusing to issue an injunction. The respondent had obtained a decree from the Court of the Subordinate Judge of Mainpuri which had been transferred to Agra for purposes of execution. In the Court of the Subordinate Judge of Agra the plaintiff-appellants filed a declaratory suit with a view to avoid the decree previously obtained by the defendant. They applied to the Court at Agra for an injunction to be issued to the defendant restraining him from taking out sale proceedings, and also for an injunction to be issued to the Execution Department directing the amin to postpone the sale. The application did not specifically mention the particular rule under which it was made, but as the prayer was for an injunction it was assumed in the Court below that the application was under Order 39, Civil P.C.R. 1 of that order had been amended by that time and injunction could not be issued by the Court. The view taken by the learned Subordinate Judge on this point was perfectly correct.

2. The learned advocate for the appellant has urged that the application should be treated as if it had been made under Order 21 Rule 29, Civil P.C. In the first place the application did not purport to have been made under that rule, and did not ask for a stay of the execution. In the second place, even if it had been under that rule, no appeal would lie from an order refusing it. An order refusing to stay execution is not a decree within the meaning of Section 2, Civil P.C. In the third place that rule does not apply to the facts of this case, because the defendant was not the holder of a decree of the Court in which the suit was pending and to which the application was made. The rule is applicable only as regards the holder of a decree of 'such Court,' The appeal is accordingly dismissed with costs, including in this court-fees on the higher scale.


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