1. This appeal has been filed as an Execution First Appeal from an order dated the 27th of January 1923.
2. A compromise decree had been passed in favour of the respondent against the appellant under which the respondent was entitled to recover a sum of money. The appellant filed a declaratory suit to avoid this decree as he was a minor. His suit was dismissed and an appeal was filed in this Court. An injunction was issued from this Court restraining the respondent from proceeding with the execution of her decree. On the 9th of August 1922 the Execution Court stayed proceedings and on the 10th of August it passed an order directing that the execution case should be struck off as the appeal might take a long time for disposal. It, however, ordered that the costs were to be borne by the decree-holder. On an application made by the decree-holder the Court modified its order on the 9th of October 1922 and directed that the decree-holder should get her costs but no notice of this application had been served on the present appellant.
3. On the 13th of October 1922 the present appellant applied for setting aside the order of the 9th of October 1922 on the ground that it had been passed ex parte and was not a just and proper order. After notice had been served on the respondent and she had put in objections the Court on the 27th of January 1923 dismissed the application for restoration saying that the previous order was one correcting an obvious error in the earlier order and that the Court could not change the order,
4. I am of opinion that no appeal really lies from the order dated the 27th of January 1923. Under Section 647 of the Code of Civil Procedure of 1882 there was a conflict of opinion whether procedure for setting aside ex parte decrees could or could not be applied in extenso to applications to set aside orders passed by the Execution Department. By the Amending Act of 1892 an explanation to that Section was added saying that the Section did not apply to applications for the execution of decrees. In the mean-time an appeal from a judgment of this Court went up to their Lordships, of the Privy Council and Their Lordships independently of the explanation, held that the old Section 647 did not apply to applications for execution. Vide Thakur Prasad v. Fakir Ullah 17 A. 106 : 22 I.A. 44 : 6 M.L.J. 3 : 6 Sar. P.C.J. 626 : 8 Ind. Dec. (N.S.) 398. Accordingly the Legislature has now omitted the explanation for Section 141 of the new Code of Civil Procedure as it was unnecessary. It has been held in the case of Bharat Indu v. Asghar Ali Khan 78 Ind. Cas. 458 : 45 A. 148 : 21 A.L.J. 135 : (1923) A.I.R. (A) 460 that no appeal lies from an order refusing to restore an application in the Execution Department.
5. What in the present case has happened is that the appellant made an application for setting aside the order, dated the 9th of October 1922 and the Court below has refused to set it aside. I cannot treat this last order dated the 27th of January 1923 as a decree so as to give the appellant a right of appeal. Under Section 2 read with Section 47 of the Code of Civil Procedure an order passed by the execution Court is a decree only when it determines a question relating to the execution discharge or satisfaction of the decree. In the present case the question before the Court was really one of staying proceedings and directing each party to bear costs. It really did not relate to the execution, discharge or satisfaction of the decree itself. No appeal, therefore, lies from this order.
6. Assuming, however, that an appeal lies, I am of opinion that even on the merits the appeal cannot succeed. It was no fault of the decree-holder that an injunction was issued restraining her from proceeding with the execution of her decree. If the execution is stayed in the interest of the present appellant there is no reason whatsoever why the decree-holder should be made to bear her own costs. Her application was made at a time when no injunction had been issued and the decree-holder was at that time perfectly entitled to apply for execution.
7. Furthermore, the order as to costs is ordinarily a matter in the discretion of the trial Court and unless some question of principle is involved no appeal can ordinarily be entertained.
8. This appeal accordingly fails and is hereby dismissed with costs.