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Lala Har NaraIn Lal Bahal Vs. Mathura Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1940All326
AppellantLala Har NaraIn Lal Bahal
RespondentMathura Prasad
Excerpt:
- - badri pershad .in our opinion the preliminary objection is well founded. we hold therefore that no appeal lies against the order complained of. 5. as there is a conflict of opinion on the second point, it is desirable that this point as well as the other point, which is of general importance and arises in most of the cases, may be conclusively decided.orderganga nath, j.1. this is an appeal by a decree-holder against an order of execution court staying execution of a decree under the temporary postponement of execution of decrees act (10 of 1937). the decree is for costs. two questions arise in this case: (1) whether a decree for costs is one to which the act applies, and (2) whether an appeal lies from such an order. as regards the first point, it has been held by a learned single judge in ex. f.a. no. 217 of ram narain v. ashagri begum, ex. f.a. no. 217 of 1939 decided on 8th january 1940 that the act does not apply to a decree for costs. it was observed there:he (learned counsel) suggests that a decree for costs is a decree for money. in so far as that goes the liability to pay costs was not incurred before the act came into.....
Judgment:
ORDER

Ganga Nath, J.

1. This is an appeal by a decree-holder against an order of execution Court staying execution of a decree under the Temporary Postponement of Execution of Decrees Act (10 of 1937). The decree is for costs. Two questions arise in this case: (1) whether a decree for costs is one to which the Act applies, and (2) whether an appeal lies from such an order. As regards the first point, it has been held by a learned single Judge in Ex. F.A. No. 217 of Ram Narain v. Ashagri Begum, Ex. F.A. No. 217 of 1939 decided on 8th January 1940 that the Act does not apply to a decree for costs. It was observed there:

He (learned Counsel) suggests that a decree for costs is a decree for money. In so far as that goes the liability to pay costs was not incurred before the Act came into force.

2. As regards the second point, there are conflicting decisions. In S.A. No. 687 of Shib Charan Das v. Brij Mohan Singh, reported in it has been held by a learned single Judge that an appeal lies. There it was observed:

Learned counsel has referred me to the case in Mangat Rai v. Babu Ram , in which it was held that an order for stay did not amount to a decree. I can quite see that ordinarily an order for stay does not amount to a decree because no question between the parties is determined, that is, there is no determination of the right of one party or the other. The Court is merely exercising its discretion. In the case before me, however, the judgment-debtor claimed as of right that the decree could not be executed and the decree-holder claimed that it could be. There was therefore a distinct question of the rights and liabilities of the parties in respect of the execution of the decree and I have no doubt that an appeal lay from the order passed.

3. This decision was approved of by a Bench of two Judges in Civil Revision No. 271 of Narottam Das v. Ballu Ram Bhagwati Prasad, Civil Revn. No. 271 of 1938, Decided on 20th December 1939. There it was observed:

We are informed by learned Counsel appearing for the applicant that it has been held by Allsop J. on 13th December 1939, in S.A. No. 687 of Shib Charan Das v. Brij Mohan Singh, reported in that an order on an application of this nature comes within the purview of Section 47, Civil P.C., and that an appeal lies against such an order. It seems to us that the view taken by our learned brother in the case just mentioned is correct.

4. In a subsequent case Ex. F.A. No. 349 of Kalicharan v. Khunni Lal, Ex. F.A. No. 349 of 1938 Decided on 12th January 1940 the same Bench has taken a different view. It was observed there:

Reliance is placed on the decision in Behari Lal Ram Charan v. Badri Pershad . In our opinion the preliminary objection is well founded. It has been argued by the learned Counsel for the appellant that the orders granting or refusing stay of execution which are dealt with by the ruling relied upon by the respondent and the rulings mentioned in the judgment of that case deal only with cases in which the Court had passed an order in the exercise of its discretion whereas the present case is concerned with a statutory right to obtain a stay, and it is contended that the ruling is therefore not applicable. In our opinion an order granting or refusing a stay remains an order granting or refusing a stay, irrespective of the ground on which the application for stay was based. Where the judgment-debtor bases his application for stay on a statute, or on some other ground, the order passed will still remain an order which does not amount to the determination of such questions which have been held to be within Section 47 of the Code. We hold therefore that no appeal lies against the order complained of.

5. As there is a conflict of opinion on the second point, it is desirable that this point as well as the other point, which is of general importance and arises in most of the cases, may be conclusively decided. Let this case be laid before the Hon'ble Chief Justice for its decision by such Bench as he may think proper.


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