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Shib Charan Das Vs. Brij Mohan Singh - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1940All322
AppellantShib Charan Das
RespondentBrij Mohan Singh
Excerpt:
- - there is no specific provision to this effect in sub-section (1) of section 3, but the learned judge has proceeded by way of analogy and i am not satisfied that his decision was wrong......of execution of decrees act 10 of 1937. the application was made to the civil court which had passed the decree although the decree was in execution in the collector's court. the court which had passed the decree decided that the decree-holder was an agriculturist within the meaning of sub-section (2) of section 3 of act 10 of 1937 and that he could obtain a postponement only if he paid one-fifth of the amount decreed. the judgment-debtor appealed to the district judge who came to the conclusion that the judgment-debtor was entitled to an order for postponement of execution without making any deposit because he was an agriculturist within the meaning of sub-section (1) of section 3. the question turned upon the issue whether the judgment-debtor paid more or less than rs. 250 a year.....
Judgment:

Allsop, J.

1. This second appeal arises out of proceedings for the execution of a decree. The judgment-debtor made an application for stay under the provisions of the United Provinces Temporary Postponement of Execution of Decrees Act 10 of 1937. The application was made to the Civil Court which had passed the decree although the decree was in execution in the Collector's Court. The Court which had passed the decree decided that the decree-holder was an agriculturist within the meaning of Sub-section (2) of Section 3 of Act 10 of 1937 and that he could obtain a postponement only if he paid one-fifth of the amount decreed. The judgment-debtor appealed to the District Judge who came to the conclusion that the judgment-debtor was entitled to an order for postponement of execution without making any deposit because he was an agriculturist within the meaning of Sub-section (1) of Section 3. The question turned upon the issue whether the judgment-debtor paid more or less than Rs. 250 a year as land revenue. If he paid less he came within Sub-section (1) and if he paid more, he came within Sub-section (2). The learned Judge of the lower Appellate Court has found a fact on the evidence that he paid less than Rs. 250. This is a finding of fact and is binding on this Court.

2. The decree-holder appellant urges two main points. One is that the order of the first Court was final between the parties because no appeal lay. He points out that no appeal is provided under the provisions of this particular Act. It seems to me quite clear that the provisions of the Civil Procedure Code govern the question at issue unless there is some special provision in some special Act which lays down the contrary. In the absence of any special provision in Act 10 of 1937 the Civil Procedure Code will govern the right of appeal. Learned counsel urges that no appeal under the Civil Procedure Code lies but it seems to me that this is an appeal against a decree within the meaning of the Code. Under Section 2 the term 'decree' is deemed to include the determination of any question within Section 47. Section 47 says that all questions arising between the parties to the suit in which the decree was passed and relating to the execution of the decree shall be determined by the Court executing the decree. Therefore an order passed deciding any question arising between the parties to the suit in which the decree was passed relating to the execution of the decree amounts to a decree. In this case there was a dispute between the parties upon the question whether the decree could be immediately executed and that question was determined by the Court which had passed the decree and the order passed by that Court was therefore itself a decree and is appealable. Learned counsel has referred me to the case in Rangat Rai v. Babu Ram : AIR1929All85 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. Another point urged by the appellant is that the application for stay should have been made to the Collector who was executing the decree at the time. The learned Judge of the lower Appellate Court has pointed out that it is specifically stated with reference to applications under Sub-section (2) of Section 3 of Act 10 of 1937 that applications for stay can be made either to the Court executing the decree or to the Court passing it. There is no specific provision to this effect in Sub-section (1) of Section 3, but the learned Judge has proceeded by way of analogy and I am not satisfied that his decision was wrong. I therefore dismiss the appeal under Order 41, Rule 11, Civil P.C.


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