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HusaIn Bhai and anr. Vs. Beltie Shah Gilani - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1924All808; (1924)ILR46All733
AppellantHusaIn Bhai and anr.
RespondentBeltie Shah Gilani
Cases Referred and Deoki Nandan v. Bansi
Excerpt:
civil procedure code, section 47 - execution of decree--order staying execution--appeal. - - 2. the respondent takes a preliminary objection that no appeal lies, as the order complained of does not amount to a decree within the meaning of sections 2 and 47 of the code of civil procedure and it is not one for which an appeal is provided under order xli1i of the first schedule to the code. in the later case it was laid down that the language of the section must be construed subject to reasonable limitations, and that to take the words in their widest possible meaning would lead to results-which were clearly contrary to the intention of the legislature. as we think' that the order on the merits was a bad order, we allow the respondent no costs of the appeal......decree-holder desires a decision on it because he contends that the court below had no power to stay execution and because four successive orders of stay for limited periods were passed by the same subordinate judge, in each case on payment of rs. 5,000. the amount of the decree was rs. 74,558 and it was passed on the 28th of march, 1922. the judgment-debtor contended that the decree-holder owed him money in bombay and he asked for stay in order either to file a suit or to institute arbitration proceedings under an arbitration agreement for the recovery of this amount.2. the respondent takes a preliminary objection that no appeal lies, as the order complained of does not amount to a decree within the meaning of sections 2 and 47 of the code of civil procedure and it is not one for.....
Judgment:

Daniels, J.

1. The order against which this first appeal is preferred is an order staying execution of a decree from the 23rd of July, 1923, to the 6th of September, 1923, on payment of Rs. 5,000 by the judgment-debtor. The period to which the order relates having long since expired, the appeal has really become superfluous, but the appellant decree-holder desires a decision on it because he contends that the court below had no power to stay execution and because four successive orders of stay for limited periods were passed by the same Subordinate Judge, in each case on payment of Rs. 5,000. The amount of the decree was Rs. 74,558 and it was passed on the 28th of March, 1922. The judgment-debtor contended that the decree-holder owed him money in Bombay and he asked for stay in order either to file a suit or to institute arbitration proceedings under an arbitration agreement for the recovery of this amount.

2. The respondent takes a preliminary objection that no appeal lies, as the order complained of does not amount to a decree within the meaning of Sections 2 and 47 of the Code of Civil Procedure and it is not one for which an appeal is provided under Order XLI1I of the first schedule to the Code. The principles which should govern our decision of this objection are laid down in the case of Mukhtar Ahmad v. Muqarrab Husain (1912) I.L.R. 34 All. 530. It is pointed out in that judgment that the language of Section 47 is very wide and if taken in its literal sense will cover every order of an interlocutory nature that may be passed in execution proceedings. The particular order which was being construed in Mukhtar Ahmad's case was an order cancelling the dismissal of execution proceedings for default and holding that the previous attachment still subsisted. It was held that this order did not come under Section 47. The court adopted the judgment of Mr. Justice Banerji in a Calcutta case under the old Code, in which two tests were laid down for determining whether a particular order came under Section 47 (old Section 244) or not. The first is thus stated:

An order in execution proceedings can come under Section 244 only when it determines some question relating to the rights and liabilities of parties with reference to the relief granted by the decree; not when, as in this case, it determines merely an incidental question as to whether the proceedings are to be conducted in a certain way.

3. The second test, deduced from the language of the section which enacts that questions arising under it 'shall be determined by the court executing the decree and not by a separate suit', was that the questions contemplated by the section must be of such a nature that it is possible to suppose that but for the section they could have formed the subject of determination in a separate suit. Judging by both these tests, the order before us is not one coming under Section 47. It does not determine the rights and liabilities of the parties with reference to the relief granted by the decree, but merely the incidental question whether execution should proceed at once or after an interval of two months. It certainly could not have formed the subject of a separate suit.

4. The case of Janardan Triumbak v. Martand Triumbak (1920) I.L.R. 45 Bom. 241 is a direct and recent authority for the view that an order staying execution is not appealable. The Chief Justice, Sir Norman Macleod, says in his judgment that it is difficult to imagine that the Legislature thought that an order for the stay of execution would be construed in any way as in the nature of a decree or that it should be deemed to be included within the term ' decree '. He adds that a question relating to the stay of execution is within the discretion of the court to which the application is made, and it is certainly not desirable to extend the number of appealable orders unless there is a distinct authority for such an extension.

5. It is true that the opposite view was taken by a Bench of this Court in Ghazidin v. Fakir Bakhsh (1884) I.L.R. 7 All. 73. There are two reasons why we are not bound to follow that decision. In the first place, the case was decided under the Code of 1882. Under that Code there was a difference of opinion on the question. The Legislature in 1888 settled the question by inserting the words 'or to the stay of execution thereof' in Section 244. These words have been again omitted in the. Code of 1908, and it would be rash to assume that their removal leaves the law unchanged. Secondly, the view taken in that case is inconsistent with the decision in the subsequent case of Mukhtar Ahmad v. Muqarrab Husain (1912) I.L.R. 34 All. 530. The earlier case took the view that the widest possible meaning should be. attached to the language of the section. In the later case it was laid down that the language of the section must be construed subject to reasonable limitations, and that to take the words in their widest possible meaning would lead to results-which were clearly contrary to the intention of the Legislature. An unreported Calcutta case, Srinivas Prasad Singh v. Kesho Prasad Singh (1911) 14 C.L.J. 489, has been cited in support of the view that an appeal lies, but the observations in that case are purely obiter. The actual decision was that no appeal lay as no appealable order had yet been passed. I would, therefore, allow the preliminary objection and hold that no appeal lies. We have been asked to treat the appeal as an application in revision, but the difficulty in the way of doing this is that no case has yet been decided within the meaning of Section 115 of the Code of Civil Procedure.

6. We think it right to add that on the merits the order of the court below would be difficult to support. It is admittedly not covered by either Rule 26 or Rule 29 of Order XXI, and the respondent's learned Counsel in order to support it is driven to fall back on the inherent powers of the court under Section 151 of the Code. No case, however, was made out for resort to the court's inherent powers. As we have already said, any decision on the point is now purely academic as the period for which stay was granted has long since expired, but we think that the learned Subordinate Judge should not pass any more stay orders on the same grounds unless the decree-holder consents. As we think' that the order on the merits was a bad order, we allow the respondent no costs of the appeal.

7. The result is that the appeal is dismissed but without costs.

Boys, J.

8. Though for different reasons, I arrive at the same conclusion that no appeal lies against an order staying execution.

9. I have considered, among others, particularly the cases Ghazidin v. Fakir Bakhsh (1884) I.L.R. 7 All. 78, Srinivas Prosad Singh v. Kesho Prasad Singh (1911) 14 C.L.J. 489, Mukhtar Ahmad v. Muqarrab Husain (1912) I.L.R. 34 All. 530 and Janardan Triumbak v. Martand Triumbak (1920) I.L.R. 45 Bom. 241.

10. Admittedly, if an order for stay of execution is a decree, an appeal lies. Therefore the case for the appellant, in reply to the preliminary objection of the respondent that no appeal lies, may be stated as a simple syllogism of which the first premise is:--'All determinations of questions which are within Section 47 amount by virtue of Section 2 to decrees''; the second:--'An order for stay of execution is a determination of a question within Section 47'; and the conclusion: ''Therefore an order for stay of execution is a decree''.

11. Difference of opinion has hitherto centred round the second of these premises. It has been assumed that the first premise is true, and held, e.g. in Ghazidin v. Fakir Bakhsh (1884) I.L.R. 7 All. 78, that the second premise is true and that therefore the conclusion is true. It has been assumed that the first premise is true, and held, e.g. in Mukhtar Ahmad v. Muqarrab Husain (1912) I.L.R. 34 All. 530 that the second premise is false arid that, therefore, the conclusion is false.

12. But the truth of the first premise appears always to have been assumed in the above and other cases without discussion. This fact, while increasing very greatly my diffidence in now challenging it, at the same time affords me some measure of encouragement in venturing to state the view that while the second premise is true (as held by Straight, O.C.J. and Mahmood, J., in 7 All. 78), the first premise is false, and, therefore, the conclusion is false,--a view for which I have not found any support in judicial authority, but which is, I suggest, sustained by the correct interpretation of Section 2.

13. It appears to me a forced construction of the language of Section 47 to hold that the second premise is not true, i.e. to hold that a decision to stay execution where the decree-holder wants to execute and the judgment-debtor wants execution stayed is not a determination of a question relating to the execution.

14. So far it appears to me a question of the ordinary meaning of the words used, and I find support also in the opinion of Straight, O.C.J. and Mahmood, J., expressed at page 77 of their judgment in Ghazidin v. Fakir Bakhsh (1884) I.L.R. 7 All. 78.

15. The section, so far as onr present purpose is concerned, stood in 1884, the date of the decision just quoted, as it stands now. Certain words were added later by Act VII of 1888 but they were again dropped when the present Code came into force.

16. Mahmood, J., however, went on to say at page 78: 'We are of opinion that the widest meaning should be attached to Clause (c) of Section 244, so as to enable the court of first instance and the court of appeal to adjudicate upon all kinds of questions arising between the parties to- a decree and relating to its execution'.

17. It is the proposition that ' the court of appeal has power to adjudicate upon all kinds of questions arising between the parties to a decree and relating to its execution ' which assumed the truth of the first premise, which gave rise to difficulty, which created alarm (vide 34 AIL, 530) as declaring a right of appeal against an almost unlimited number of orders, many of small importance, and which has led to the search for some formula by which to narrow the scope of Section 47 and avoid so undesirable a result.

18. The desired formula has been arrived at by devising certain tests, not always unanimously approved, referred to in Srinivas Prosad Singh v. Kesho Prosad Singh (1911) 14 Calc. L.J. 489 and Mukhtar Ahmad v. Muqarrab Husain (1912) I.L.R. 34 All. 530, the result of applying which is to restrict the ordinary meaning of the words 'question relating to execution' and thereby exclude from Section 47 many orders against which it is considered there should be no appeal. For instance, it has been held that the words 'all questions arising between the parties to the; suit in which the decree was passed and relating to the execution' do not include all questions so arising, but only questions relating to the rights and liabilities of parties with reference to the relief granted by the decree. What justification is there, other than that of expediency, for so cutting down the scope of the language

19. As the matter presents itself to me, the crucial words are not those in Section 47 but the words in Section 2:--'It, (i.e. the word 'decree') shall be deemed to include the determination of any question within Section 47'.

20. If it is an inevitable conclusion from these words that the first premise is true, i.e. that if a question comes within Section 47 the decision upon it is a decree, then we are forced to choose between holding that practically every order, even of x the most trifling importance, under Section 47 is appealable as a decree, or, in the alternative, doing the violence to language to which I have adverted, by devising some formula to control the section.

21. But it appears to me that the language of Section 2 is reasonably and properly susceptible of an interpretation that does not involve the consequence that decisions in regard to all questions coming within Section 47 are decrees.

22. The essential characteristic of a decree as denned in Section 2 is that it is 'the formal expression of an adjudication which so far as regards the court expressing it conclusively determines the rights of the parties with regard to any matter in controversy'. For a moment only I omit from consideration the further limitation imposed in the first part of the definition by the words 'in the suit.' This essential characteristic may be accurately paraphrased as 'a determination of the rights of the parties with regard to any matter in controversy formally expressed as an adjudication and conclusive so far as regards the court expressing it'.

23. The 'determination' bearing these characteristics is first limited to such a 'determination' 'in a suit'. It is then extended to a 'determination' 'of any question within Section 47'. It is a proper inference that the scope of the word 'determination' in the phrase 'determination of any question within Section 47' is no greater and no less than that, of the word ''determination'' as used in reference to ''suits'', and therefore that the phrase 'determination of any question within Section 47' does not make every decision of any question within Section 47 into a decree any more than every decision in a suit is a decree, but only those determinations which are formally expressed as adjudications and which are conclusive so far as regards the court expressing them.

24. The addition of the words ''the determination of any question within Section 47' merely extends the scope of the word 'decree' so as to make it include not only determinations having certain characteristics and made in a suit but also determinations having those characteristics but made in execution proceedings within Section 47.

25. It is clear that an order for stay has not attached to it the characteristics of a formal expression of an adjudication conclusive so far as regards the court expressing it, and, therefore, though, giving to the language of Section 47 its ordinary meaning, a stay order comes within Section 47, it is not a decree as defined by Section 2 and is, therefore, not appealable as a decree.

26. I do not lose sight of the fact that in Section 47(1) the word '' determines '' is used in regard to all questions included in Section 47(1), but it is there used without the qualifying words which are indubitably attached to it where it first occurs in Section 2 and which, therefore, as I have endeavoured to show, can properly and should be attached to it where it occurs for the second time in the very same Section 2.

27. I am led to the conclusion that Section 47 does by its very language inevitably cover and, therefore, must properly be held to cover a very wide variety of orders divisible into three classes: (1) orders that have the characteristics of a formal adjudication conclusively binding on the court and amounting therefore to decrees as defined in Section 2; (2) orders against which an appeal is specifically allowed, (see Order XLIII); (3) other orders of an interlocutory nature against which there is no- appeal at all.

28. For the reasons I have given, I am of opinion (a) that a stay order is a determination of a question relating to execution within the meaning of Section 47; (b) that, though a stay order does fall within Section 47, it is not a decree because it is not a determination which has attaching to it the characteristics required by Section 2 to be attached to a determination, whether in. a suit or in execution, if it is to amount to a decree; (c) that a stay order is therefore not appealable as a decree, and no special appeal against such an order as an order being given, no appeal lies.

29. Since the above was written, the research of my learned brother Mr. Justice Daniels has drawn my attention to Saurendra Nath v. Mritunjay Banerji (1920) 5 Pat. L.J. 270, in which the cases Sivagami Achi v. Subrahmania Ayyar (1903) I.L.R. 27 Mad. 259 and Deoki Nandan v. Bansi (1911) 16 C.W.N. 124 were approved and followed. Remarks in the Patna case and also in the Calcutta case go some way to support the view I have expressed above as to the effect of Section 2, though I observe that in neither of the cases was it apparently noticed that the Madras case, which was at the same time approved, proceeded upon the principle of ruling the orders out of Section 47, and not of admitting them within Section 47 and ruling them out of Section 2.

30. For these reasons I concur in dismissing the appeal, and for the reason given by Mr. Justice Daniels without costs.

31. The order of the Court is that the appeal be dismissed but without costs.


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