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M. Desikachariar Vs. Ramachandra Reddiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 42 of 1947
Judge
Reported inAIR1951Mad56; (1951)IMLJ23
ActsDebt Laws; Madras Agriculturists' Relief Act, 1938 - Sections 20; Code of Civil Procedure (CPC) , 1908 - Sections 2(2), 47 and 96
AppellantM. Desikachariar
RespondentRamachandra Reddiar
Appellant AdvocateV.S. Rangaswami Aiyangar, Adv.
Respondent AdvocateG.R. Jagadisan, Adv.
Cases ReferredAdaikappa Chettiar v. Chandrasekhara Thevar
Excerpt:
civil - appeal - section 20 of madras agriculturists' relief act, 1938 and sections 2 (2), 47 and 96 of code of civil procedure, 1908 - whether order under section 20 is appealable - appeal lies against order staying or refusing to stay execution of decree if order conclusively determines rights of parties - in present case valuable rights of parties decided - in one contingency temporary stay granted would be extended till disposal of application under section 19 - no question of further execution of decree would arise if decree is satisfied after scaling down under section 19 - only amended decree will be executed if amended - decree can be executed only if application under section 19 is dismissed - judgment-debtor would be saved from further execution of decree till such contingency.....subba rao, j.1. the question referred to the fall bench is whether an order under section 20, madras agriculturists' relief act (iv [4] of 1938) is appealable.2. section 20 of the act reads as follows :'every court executing a decree passed against a person, entitled to the benefits of this act, shall on application, stay the proceedings until the court which passed the decree, has passed orders on an application made or to be made under section 19: provided that where within 60 days after the application for stay has been granted the judgment-debtor does not apply to the court which passed the decree for relief under section 19 or where an application has been so made and is rejected, the decree shall be executedas it stands, notwithstanding anything contained inthis act to the.....
Judgment:

Subba Rao, J.

1. The question referred to the Fall Bench is whether an order under Section 20, Madras Agriculturists' Relief Act (IV [4] of 1938) is appealable.

2. Section 20 of the Act reads as follows :

'Every Court executing a decree passed against a person, entitled to the benefits of this Act, shall on application, stay the proceedings until the Court which passed the decree, has passed orders on an application made or to be made under Section 19:

Provided that where within 60 days after the application for stay has been granted the judgment-debtor does not apply to the Court which passed the decree for relief under Section 19 or where an application has been so made and is rejected, the decree shall be executedas it stands, notwithstanding anything contained inthis Act to the contrary.'

Under this section, every person entitled to the benefits of the Act may apply for the reliefs mentioned therein. It is, therefor, obligatory on the Court to decide whether the applicant is an agriculturist and is otherwise entitled to the relief under Madras Act IV [4] of 1938. If he is entitled to the said relief stay will be granted; otherwise, the application will be dismissed. If stay be granted, the decree-holder will be prevented from executing the decree till the expiry of 60 days from the date of the order if no application under Section 19 is filed and, if filed, till that application is disposed of in his favour. If the application under Section 19 goes against him, the stay granted by the Court in effect becomes absolute and the only remedy of the decree-holder is to execute the amended decree. If the application under Section 20 is dismissed, the properties of the judgment-debtor may be sold to his prejudice. So, under this section, apart from the fact that the Court decides the right of the applicant to relief under the Act, the order passed therein will certainly affect the rights of the parties under the decree.

3. Whether an appeal lies against such an order will have to be decided on a combined reading of the provisions of Section 47, Section 2, Sub-section (2) and Section 96, Civil P. C. Sub-section (2) of Section 2, Civil P. C. runs thus :

' 'Decree' means 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 all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include :

(a) any adjudication, from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.'

The relevant provisions of Section 47 of the Gode read :

'47 (1) : All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.' Section 96 says :

'96 (1) :..... an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.'

4. It is apparent from the aforesaid provisions that an appeal from an order would lie only if the following three conditions are complied with : (1) the order must relate to execution, discharge or satisfaction of the decree between the parties to the suit; (2) it shall conclusively determine the rights of the partieswith regard to all or any of the matters in controversy; (3) such conclusive determination of the rights is with reference to the Court in which such rights are decided.' No doubt, the definition of 'decree' in Section 2, lends support to an argument that if an order is covered by Section 47, Civil P. C. it will be deemed to be a decree for the purpose of an appeal. But if this construction be accepted it will make every order made in execution proceedings, whether interlocutory or otherwise, appealable, and the result would be that the execution proceedings would be arrested at every step. An order refusing an adjournment), an order issuing or refusing to issue notice or an order granting or refusing process for the examination of witnesses and many other such orders would be subjected to a right of appeal. I cannot accept such a construction unless the words used in the section are clear and unambiguous. When a formal expression of an adjudication in a suit would be a decree only if it conclusively determines the rights of the parties, I do not see any principle by which an order under Section 47, Civil P. C., should be a decree without complying with that necessary condition. Orders under Section 47, Civil P. C., have been brought in under the extended meaning of the decree as they otherwise would not be covered by the main definition as the said orders are not made in a suit. But to attain the status of a decree such orders must possess the characteristics of a decree as defined in the main part of the section. If the meaning of the provisions is as I have indicated, the order under Section 20, Madras Agriculturists' Relief Act certainly complies with the characteristics of a decree. As it is an order relating to the execution of a decree between the parties to the suit, it is covered by Section 47 of the Code. As the right of the applicant for an appropriate relief under the Madras Agriculturists' Relief Act in respect of the reliefs granted under the decree is in issue and as the order affects the rights of the parties in different ways under different contingencies, it will be an order determining the rights of the parties. It would also ba a conclusive determination of the rights of the parties, with regard to the Court expressing it as the said question cannot be raised again in the executing Court till the final adjudication is obtained in the application filed in the suit. Whether the application is dismissed or allowed, so far as the executing Court is concerned, the order is final.

5. The learned counsel for the appellants contended that an order under Section 20, Madras Agricultures' Relief Act is summary in character and ancillary to the execution and thereforedoes not embody any conclusive determination of the rights of the parties, whereas the learned counsel for the respondent pressed on us the extreme contention that any order which comes in under Section 47, Civil P. C., is automatically appealable as it would be a decree within the meaning of Sub-section (2) of Section 2, Civil P. C. His alternative contention was that an order under Section 20, Madras Agriculturists' Relief Act, conclusively determines the rights of the parties so far as the executing Court is concerned and therefore is a decree, and appealable. The judgment of Horwill J. reported in Veeraraghavayya v. Rattamma : (1948)1MLJ425 certainly supports the learned, counsel in his first contention. In that case, the Court dismissed the application filed for stay of execution of the decree pending an appeal. After setting out the provisions of Section 47, Civil P. C., the learned Judge observes:

'So if any question arising in execution is determined under Section 47, Civil P. C., it automatically becomes a decree by virtue of the wording of Section 2(2) of the Code whether the order conclusively determines the rights of the parties or not; so that it would seem to follow that if the decision in Subramania Pillai v. Kumaravelu Ambalam, 39 Mad. 541: (A.I.R. (4) 1917 Mad. 310) was properly decided, then it would directly follow that an order on an application for stay would be a decree within the meaning of Section 2(2), Civil P.C.' I cannot agree with the construction put upon the provisions of Section 2(2), Civil P. C., by the learned Judge. As I Have already pointed out, this construction would lead to startling results. Further, so far as I am aware, the section has never been understood in the manner expressed by the learned Judge,

6. That an order on a stay petition relates to execution of a decree admits of no doubt. Indeed, in Section 244 of the Code of 1882 which corresponds to the present Section 47, Civil P. C., the word 'as to the stay of execution thereof' occur after the words 'execution, discharge or satisfaction of the decree' but those words have been omitted in Section 47 of Act V [5] of 1908. But notwithstanding such an omission, Courts have held that the words were omitted as superfluous, for a plea that execution of a decree may be stayed is equivalent to the plea that the decree should not be executed, and, therefore, is a question relating to the execution of the decree. In Subramania Pillai v. Kumaravelu Ambalam, 39 Mad. 541 : (A.I.R.1917 Mad. 310) an application was made to the executing Court by one of the judgment-debtors to enter up satisfaction of the decree as against him on the ground that there was an agreement to that effect entered into between himself and the decree-holder prior to the passing of the decree. When an argumentwas built upon the omission of the words 'or to the stay of execution thereof in Section 47, Civil P. C., the learned Judges remarked :

'We are not satisfied that the omission of these words in Section 47 of the present Code is any indication that matters relating to stay of execution are not within the section. The words omitted may have been regarded as superfluous.'

When a similar argument was advanced in Chidambaram Chettiar v. Krishna, 40 Mad. 233 : (A. I. R. 1918 Mad. 1174 Abdur Rahim O. C. J. observed at p. 237,

'No doubt Section 244 of the Code of 1882 specifically mentions 'stay of execution' as a question to be decided by the Court executing the decree but the scheme of the corresponding Section 47 of the present Code is not to specify particular questions at all but to include all questions relating to the execution, discharge or satisfaction of a decree as being within its scope.' No doubt, Phillips J. who differed, struck a different note. In Venkatappadu v. Ramamurti : AIR1940Mad131 the learned Judges held that all petitions under Sections 19 and 20, Madras Agriculturists Relief Act, IV [4] of 1938 must be deemed to be petitions which raised questions relating to the execution discharge or satisfaction of the decree and therefore come within matters covered by Section 47, Civil P. C. Though the view of the learned Judges that questions under Section 19 related to execution has been dissented from and even overruled in later Full Bench decision, their view in regard to the scope of a petition under Section 20 cannot be questioned in view of the observations in Subramania Pillai v. Kumaravelu Ambalam, 39 Mad. 541 : (A. I. R.1917 Mad. 310) and Chidambaram v. Krishna, 40 Mad. 233: (A. I R.1918 Mad. 1174 ). But though those three decisions support the contention that an application for stay is an application relating to execution within the meaning of Section 47, Civil P. C., the learned Judges deciding those cases were neither called upon to decide, nor did they decide, that any order passed therein automatically becomes appealable.

7. The leading decision defining an order in execution vis-a-vis the definition of decree is reported in Jogodishuary v. Kailash Chundra Lahiri, 24 Cal. 725 : At p. 739, the learned Judges say,

'It is not every order made in execution of a decree that comes within Section 244. If that were so, every interlocutory order in an execution proceeding, such as an order granting or refusing process for the examination of witnesses would be appealable ; and far greater latitude would be given of appealing against orders in such proceedings than is allowed as against orders made in suits before decree--a thing which could hardly have been intended. 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 determinesmerely an incidental question as to whether the proceedings are to be conducted in a certain way.'

I accept the said statement as the correct; exposition of law relating to the appealability of orders under Section 47, Civil P. C. In Srinivasa Prosad Singh v. Kesho Prasad Singh, 14C. L. J. 489 : 12 I. C. 745, Mookerjee J, states his opinion to the same effect but in different words, thus,

'It is not every interlocutory order passed in the course of execution proceedings even though it may decide any point of law which may arise incidental to the decree that can come under Section 47 but it must be an order which must determine the rights of the parties in controversy in the execution proceeding.'

This statement of law is accepted by Thiruvenkatachariar J. in Somu v. Chelliah : AIR1929Mad718 . The question there was whether an order of the District Munsif directing the arrest of the appellant was a decree within the meaning of Section 2(2), Civil P. 0. The learned Judge held that it was not a decree. He observed

' The order passed is no doubt one which falls within the terms of Section 47 as an order relating to the execution of the decree. But it is not an order relating to the execution of the decree which amounts to a decree as defined in Section 2(2), Civil P. C. The order to have the force of a decree must not only relate to aquestion which falls within Section 47 but it must also determine the rights of the parties with regard to anymatter in controversy between them as regards the decree. There are many orders passed under Section 47 which though they relate to execution are mere interlocutory orders which do not determine any rights but regulate the procedure as regards the steps which may be taken in aid of the execution of the decree.' This view 13 also accepted by the Allahabad High Court in Beharilal v. Badri Prasad : AIR1931All129 . The order in that case was that the decree. holder must first proceed to realise the balance of the decretal money from defendants 1 to 3 and if he was unable to realise his money from them then alone he could proceed against defendants 4 and 5. The learned Judges held that the order was not appealable. At p. 130 the learned Judges expressed the construction of the relevant section in the following manner : 'We think that the word 'deteianination' in Section 2(2) must be read in the sense of conclusive determination. In other words, the determination must have the characteristics of a 'decree' as denned in the first sentence of Section 2(2). We cannot believe that it was the intention of the Legislature that every order of every description (including interlocutory orders) passed by an execution Court, determining any question at issue between the parties in relation to execution of a decree, should be appealable as a decree.'

Venkatasubba Rao J, in Beerankutty v. Amath Mammu A.I.R. 1938 Mad. 623: 71 M.L. J. 256 also understood the section in a similar manner, accepted the view succinctly stated in Srinivasa Prasad Singh v. Kesho Prasad Singh, 12 I. c. 745 : (14 C. L. J. 489) as follows :

'Clause 2 of Section 2 then provides that the term 'decree' shall be deemed to include the determination of any question with Section 47, but shall not include any adjudication from which an appeal lies as an appeal from an order. This extended definition of the term 'decree', it will be observed, follows the primary definition that the term 'decree' means 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 all or any of the matters in controversy in the suit.'

In that case as the order was only one of amendment of an execution petition, the learned Judge held that that was not a final adjudication conclusively determining the rights of the parties.

8. In Gopalaswami Mudaliar v. Thyagarajasami Devastanam : AIR1948Mad43 Eajamannar J. (as he then was) considered the judgment of Venkatasubba Eao J. in Beerankutti v. Amath Mammu, A. I. R. 1936 Mad, 623 : (71 M. L. J. 256) and did not accept the position that interlocutory orders are not appealable. But a perusal of the judgment does not show that the learned Judge did not accept the long established construction of Section 2(2), Civil P. C., for he held that the order in question though interlocutory in nature was appealable because the order definitely negatived the right claimed by the decree-holder which was the subject-matter of the amendment petition.

9. In Mt. Durga Devi v. Hansraj, 11 Lah. 402 : (A. I. R. 1930 Lah. 187) the question was whether an order staying execution till the decision of the appeal fell under Section 2(2) read with Section 47, Civil P. C., 1908, and was appealable. The combined effect of Section 47, Civil P. C. and Section 2(2), Civil P. C. was expressed by the learned Judges in the following manner :

'The combined effect of these sections is that an order passed in execution proceedings will be tantamount to a 'decree' if (a) so far as regards the Court passing it conclusively determines a question ; (b) arising between the parties to the suit, in which the decree was passed, or their representatives, and (c) relating to the execution of a decree.'

At page 407 the learned Judges quoted with approval the following view of Le Rossignol J. in Sardar Khan v. Fateh Din, 68 I. C. 751 : (A. I. R. 1922 Lah. 480) :

'Under the present law, all questions without exception, i. e., all questions which determine the rights and liabilities of the parties in the matter of the execution of the decree are appealable. Now, a decision that execution shall not take place does determine a right for the time being and may have very far reaching results. Stay of execution is a question relating executions ; it stops execution dead.'

In Kunhikavu v. Thattan Kesavan, : AIR1950Mad512 Panchapagesa Sastri J. held that an appeal lay against an order under the Madras Tenants and Ryots Protection Act XVII [17] of 1946. Thelearned Judge accepted as well established and uncontroverted position when he observed: 'Of course an order sought to be appealed against must involve a final determination of the rights.' Numerous decisions which have not found their way into the law reports have also accepted the same position.

I should not be understood to have accepted the conclusion arrived at on the facts of each case by the learned Judges in the various decisions cited by me, but I have referred to them only in support of the position that unless an order under Section 47, Civil P. C. conclusively determines the rights of the parties, so far as that Court is concerned no appeal lies against that order.

10. The next question is whether in the present case, an order under Section 20, Madras Agriculturists' Relief Act, conclusively determines the rights of the parties so far as the executing Court is concerned. Though there is a practical unanimity on the question whether an order in a stay petition relates to execution or not, there is a sharp cleavage of judicial opinion on the question whether it finally determines the rights of the parties.

11. I shall now proceed to consider the cases cited before me in an attempt to evolve a principle to reconcile, if possible the various decisions. The learned counsel for the appellant contended that an order granting or refusing stay under Section 20, Madras Agriculturists' Relief Act is summary in character and is only ancillary to the main application under Section 19 of the Act; and in support of this contention he relied upon a number of decisions of this Court.

12. In Swaminatha Odayar v. Srinivasa Iyer : AIR1939Mad942 Burn and Stodart JJ. held that no appeal lay against an order under Section 20 of the Act. Two grounds were given in support of that view ; (1) The question raised under Section 20 is one between the executing Court and the applicant ; and (2) that Section 20 is only ancillary to Section 19 and the enquiry contemplated by Section 20 was an enquiry of a summary kind and that all that was necessary was that the applicant should show the Court that prima facie he was entitled to the benefits of the Act. I cannot agree with the learned Judges when they said that the question under Section 20 is one between the Court and the petitioner. As I have already pointed out, under Section 20 the Court will have to find out whether the petitioner is entitled to relief under the Act and therefore the order would certainly affect the rights of the parties. When such is the nature of theorder it is impossible to say that the question is a matter, between the Court and the petitioner. The application will certainly have to be decided between the parties after giving the requisite notice. Even in regard to the second ground I do not see any justification in the provisions of Section 20. The Court will have to decide whether the petitioner is entitled to relief under the Act. The section does not prescribe the mode of enquiry. It does not say that the Court can pass an order under Section 20 on its prima facie view. But assuming that the disposal is summary, it does not affect the real question to be decided in the case, namely, whether that disposal is a conclusive determination between the parties so far as the Court passing the said order is concerned.

13. In Saraswati Ammal v. Arabusa Sahib : AIR1941Mad433 Wadsworth J., held that the period of limitation prescribed under the proviso to Section 20 does not apply when an application under Section 20 of the Act was dismissed for default. In dealing with that question the learned Judge no doubt observed that the executing Court had to be satisfied prima facie that the applicant was a person who would be entitled to present the application under Section 19 of the Act; and that Section 20 did not contemplate any final decision on the question of the right of the applicant to apply under Section 19. The learned Judge also gave other reasons for his view by holding that a dismissal of an application under Section 20 for default would not bar a substantive application under Section 19. I am not concerned here with the question whether the order under Section 20 finally decides the question of the right of the applicant to apply under Section 19. I am only concerned with the question whether the decision of an executing Court under Section 20 is a final decision conclusively determining the rights of the parties so far as the executing Court is concerned.

14. In Narasimha Raju v. Brundavanasahu : AIR1943Mad617 Abdur Rahman and Somayya JJ, were dealing with the question whether applications under Sections 20 and 19 would lie in the Berhampore Sub-Court under the appellate jurisdiction of the Patna High Court in regard to execution proceedings pending in that Court with reference to properties which were excluded from its jurisdiction by reason of the Constitution of the Orissa Province. If the application under Section 20 related to execution it would be maintainable in the Subordinate Judge's Court, Berhampore, by reason of some transitory provisions. In dealing with that question the learned Judge observed:

'The application under 8. 20 of Act IV [4] of 1938 could only be made to the Court executing the decree and would have to be regarded in the absence of any authority to the contrary as an application ancillary to the proceedings in execution - its main object being to stay proceedings in execution and nothing more. In that respect it would be like an ordinary application for adjournment which though not an application relating to execution, discharge or satisfaction of a decree must be prima facie held to be ancillary in its purpose and not independent in the sense that it would affect the liability under the decree either wholly or partially.'

As in their view the proceedings under Section 20 were ancillary to execution they held that it was maintainable in the Berhampore Sub-Court. The question whether the proceedings were ancillary or independent may be relevant for an enquiry in that case; but in this case the question to be considered is whether an order under Section 20, whether the proceedings were ancillary or independent, conclusively determines the rights of the parties so far as the executing Court is concerned.

15. The learned -counsel for the appellant cited a long catena of cases where it was held that an order in a stay application is not appealable. In Mangat Rai v. Babu Ram : AIR1929All85 a Bench of the Allahabad High Court held that no appeal lies against an order rejecting an application for stay of sale as the order does not involve any question relating to the execution of the decree which would amount to an adjudication conclusively determining the rights between the parties with regard to matters in controversy. The order in that case was a simple one of dismissal of an application for stay of sale. In Inayat Beg v. Umrao Beg : AIR1930All121 a Bench of the Allahabad High Court held that an order refusing stay of execution is not a decree within the meaning of Section 2 and that no appeal lay against that order. No reasons are given for that view. In Janardhan v. Martand, 45 Bom. 241 : ( : AIR1921Bom208 ) an application was filed for stay of a decree pending the disposal of another suit in which the petitioner prayed for a declaration that the decree sought to be stayed was void and incapable of execution against him. The learned Judges held that the order was not a decree on the ground that the question relating to the stay of execution was within the discretion of the Court to which the application was made and that it was certainly not desirable to extend the number of the appealable orders unless there was a distinct authority for such an extension. They also relied upon the omission of the words 'or to stay of execution thereof' in Section 47. In Beharilal v. Badri Prasad, : AIR1931All129 the order of the executing Court was that the decree-holder should first proceed to realise the balance of the decretal money from defendants 1 and 2 and if he was unable to realise the money from them, then alone he should proceed against defendants 4 and 5. It was contended for the appellant that the order was one passed by the executing Court under Section 47, determining the rights of the parties in execution and it was argued that an appeal lay against that order, but the learned Judges rejected the contention on the ground that the order did not conclusively determine any question in issue between the parties relating to the execution of the decreee but merely decided the mode in which the execution should proceed. In Hussain Bhai v. Beltie Shah, 46 ALL, 733 : (A. I. R. (11) 1924 ALL. 808) the learned Judges held that no appeal lay from an order of stay of execution of decree for a definite period. They held that the order did not determine the rights and liabilities of the parties with reference to the relief granted by the decree but merely decided the incidental question whether execution should proceed at once or after an interval of two months.

16. The learned counsel for the respondent cited before us cases where appeals were entertained against orders of stay. In Litigant Krishna v. Sivaramayya, 20 Mad. 366, a Bench of this Court held that an appeal lay from an order refusing stay of execution under Section 243 Civil P. C. (Order 21, Rule 29, Civil P. C.) pending another suit between a decree-holder and the judgment-debtor. The learned Judges followed the decision of other Courts, but there is no discussion in the judgment. In Mt. Durga, Devi v. Hansraj, 11 Lah. 40 : (A. I. R. 1930 Lah. 187) the question was whether an order staying execution pending the decision of an appeal is appealable. The learned Judges held that the said order falls under Section 2(2) read with Section 47, Civil P. C., and is therefore appealable. The reasoning of the decision is found at p. 407, and it is thus stated :

'I respectfully and wholeheartedly agree with the learned Judge that an order, which stays execution of a decree, pending disposal of the appeal against the decree, finally ,and conclusively determines (so far as the Court passing such an order is concerned), the very important right of the decree-holder to reap forthwith the fruits of the decree. It is no doubt true, that the execution proceedings may, and will be revived after the disposal of the appeal. But in that event, and from that stage, the execution will really be that of the decree of the appellate Court which will have superseded the trial Court of which execution was stayed by the order in question.'

This principle applies equally to an order under Section 20, Madras Agriculturists' Relief Act. InHar Narainlal v. Mathura Prasad : AIR1940All326 it was held that an order staying execution of a decree in accordance with the provisions of the Temporary Postponement of Execution of Decrees Act amounts to a decree and is appealable. At p. 520 the learned Judges observed :

'Now, in the present instance there was a controversy between the parties as to the judgment-debtor's right to have the execution of the decree postponed during the operation of the Temporary Postponement of Execution of Decrees Act. That Act conferred upon judgment-debtors who were agriculturists a very valuable right. The right conferred by Section 3 was one which was in dispute between the parties in the execution Court. The order of the Court proceeded upon a determination of that question. The Court conclusively and finally decided that the judgment-debtor was an agriculturist and entitled to the benefit of Section 3 of the Act. Once the judgment-debtor had established that he was an agriculturist then he was, of right, entitled to stay of the execution of the decree against him.'

These observations apply to the facts of the present case. In Nafar Chandra v. Kali Pada Das : AIR1940Cal257 it was held that an order staying or refusing to stay execution of a decree on the ground that execution was or was not barred was still an order made under Section 47, Civil P. C., and was subject to appeal as a decree. Stay was asked on the ground that the judgment-debtors were debtors within the meaning of the Bengal Agricultural Debtors' Act. The learned Judges held that the decision of the executing Court that the judgment-debtors were not debtors within the meaning of the Act would preclude them from pleading it in a subsequent stage of the execution proceedings and therefore it determined conclusively the question relating to the judgment-debtors' liability with reference to the relief granted by the decree. In Mukimannessa v. Rameswar Shukul : AIR1941Cal264 in execution of a decree against the judgment-debtor his holding was sold. The judgment-debtor made an application for setting aside the sale. Subsequently, a notice was issued by the executing Court under Section 34, Bengal Agricultural Debtors' Act, but the executing Court refused to stay further proceedings and proceeded with the application for setting aside the sale. It was held that the order refusing to stay the execution was appealable. In Sundaresan v. Venkatesiah : (1948)2MLJ421 Horwill J. held that an order under Section 7 of Madras Act XV [15] of 1946 refusing stay of execution was appealable. I have already considered the decision in Kunhikkavu v. Thattan Kesava, : AIR1950Mad512 where Panchapagesa Sastri J. held that anorder under Section 4 of Act XVII [17] of 1946 is appealable if it involved a final determination of the rights.

17. Though there is an apparent conflict of authority on the question to be decided, the Judges accepted the principle that an appeal lies against an order staying or refusing to stay execution of a decree if the order conclusively determines the rights of the parties. They differed only in regard to the application of the principle to the facts of each case. It is therefore not possible to say that every order in a stay application is appealable. It would be appealable only if it involves a conclusive determination of the rights of the parties so far as the executing Court is concerned. In the present case, as I have already stated, very valuable rights of the parties are decided. In one contingency the temporary stay granted would be extended till the disposal of the application under Section 19. If the decree is satisfied after scaling down under Section 19, no question of further execution of the decree would arise. If amended, only the amended decree will be executed. Only if the application under Section 19 is dismissed can the decree, as it stands, be executed. But till that contingency happens the judgment-debtor would be saved from further execution of the decree. Even from the point of view of the decree-holder his rights would substantially be affected.

18. At this stage it will be convenient to consider the decision of the Judicial Committee in Adaikappa Chettiar v. Chandrasekhara Thevar on which the learned counsel for the respondent strongly relied. The facts of that case may be briefly stated : On 15-9-1925 a final decree was passed in a mortgage suit. The decree-holder took out Ex. No. 79 of 1933 to enforce the final decree, and certain of the mortgaged properties were advertised for sale, but, before a sale had been effected, the Madras Agriculturists' Eelief Act came into operation, in March 1938. On 8-7-1938, the judgment-debtor filed E. A. No. 237 of 1938 in E. P. No. 79 of 1933 under Sections 20, 19 and 8 of the Act and under Sections 47 and 151, Civil P. C. On 3-8-1938, the judgment-debtor had made an independent application, I. A. no. 361 of 1938, for amending the decree in accordance with the provisions of the Act. E. A. No. 237 of 1938 was dismissed on the ground that the judgment-debtor was not an agriculturist. I. A. No. 361 of 1938 was also dismissed on the same ground. Appeals were filed against both the orders, and the High Court held that no appeal lay against the order in I. A. No. 361 of 1938 but permitted the appellant to convert his appeal into a civilrevision petition and allowed the revision. This Court allowed the other appeal and set aside the lower Court's order and remanded it for fresh disposal. The Judicial Committee held that the order in I. A. No. 361 of 1938 was a decree and that an appeal lay to the High Court and that therefore, the revision should not have been entertained. As regards the appeal against the order in E. A. No. 237 of 1938, their Lordships made the following observation:

'The appeals against the order of 25-7-1938, was rightly entertained. That order related to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code, and an appeal, therefore, lay under Section 96.'

19. The Judicial Committee pointed out in the judgment that the order made in I. A. No. 361 of 1938 was in the suit itself and that that order was a decree as such and therefore appealable. In regard to the other order in E. A. No. 237 of 1938 their Lordships held it related to execution, discharge or satisfaction of the decree within the meaning of Section 47 of the Code, and an appeal therefore lay under Section 96. Though the Court happened to be the same, the application under Section 19 could not be filed in execution, but it should be by way of an application for the amendment of the decree. Therefore, the fact that Sections 19 and 8 were also clubbed up with Section 20 could not have empowered the executing Court to decide questions other than those that arose under Section 20 of the Act. I am, therefore, inclined to hold that, on the same reasoning, an application (Order?) under Section 20 is a decree appealable under Section 96. It may be possible to distinguish the Judicial Committee's decision on the ground that the executing Court in that case purported to decide questions arising under Sections 8 and 19 also in execution and that, therefore, an appeal lay against the order purporting to decide valuable rights. But it is not necessary to import fresh reasoning into the judgment of the Judicial Committee as even in an application under Section 20, Madras Agriculturists' Relief Act, the rights of the parties are decided. In my view, this decision goes a long way in support of the contention of the learned counsel for the respondent.

20. In the result, I hold that an appeal liesagainst an order under Section 20, Madras Agriculturists' Relief Act.

Panchapakesa Ayyar, J.

21. I agree.

Balakrishna Ayyar, J.

22. I too agree with the answer proposed.


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