1. This is an appeal under Article 15 of the Letters Patent against an order made by Mr. Justice Boddam refusing a stay of execution.
2. A preliminary objection has been taken that no appeal lies since the order appealed against is not a judgment within the meaning of Article 5 of the Letters Patent.
3. We think the objection is well founded. The order appealed against does not affect the merits of the question between the parties by determining any right or liability in dispute in the suit or appeal. Section 545 of the Civil Procedure Code expressly provides that execution of a decree shall not be stayed by reason only of an appeal having been preferred against the decree, but the Appellate Court may, for sufficient cause, order the execution to ha stayed Section 608 of the Civil Procedure Code, which deals with the powers of the High Court in the case of appeals to the Privy Council, gives a similar discretionary power to the High Court in language which is substantially the same as that used in Section 545. The Calcutta High Court in Mohabir Prosad Singh v. Adhikari Kunwuar I.L.R. 21 Calc. 473 has held that an order refusing to stay execution in the exercise of the discretion given to the Court under Section 608 of the Civil Procedure Code is not a decision which affects the merits of any question between the parties by determining a right or liability, and that no appeal from such an order lies under Clause 15 of the Letters Patent. We think this case was rightly decided and that the decision covers the point raised in the present case. The decision of this Court in Ramayyar v. Dorasami Ayyar Letters Patent Appeal No. 5 of 1900 appears to us to be an authority for the proposition that no appeal lies under the Letters Patent against an order refusing a stay of execution.
4. Our attention has been called to R. v. R. I.L.R. 14 Mad. 88 in which this Court no doubt entertained an appeal under Article 15 of the Letters Patent against an order for an adjournment made in a matrimonial suit. The question whether the order appealed against was a 'judgment' was not discussed in that case. It appears from the judgment; that the appeal was entertained on the ground that an appeal lies against every order of a single Judge escape when the right of appeal is. curtailed by legislation subsequent to the Letters Patent. Having regard to the later decisions of this Court we do not think that this very general statement can be accepted as a correct exposition of the law.
5. The case of Maharajah of Jeypore v. Papayyamma I.L.R. 23 Mad. 329 is clearly distinguishable from the present case. The order of transfer in that case was made on the erroneous assumption that the Court had jurisdiction to make the order. The question there involved was not one of discretion but of right.
6. The appellant has also relied on Section 244 of the Civil Procedure Code and has argued that inasmuch as by Section 2 of the code an order determining any question mentioned or referred to in Section 244 is a 'decree' within the definition given in Section 2, and a question relating to the stay of execution of a decree is a question mentioned in Section 244, the order appealed against is a 'decree' and consequently must be regarded as a judgment within the meaning of Article 15 of the Letters Patent. No doubt an order determining a question referred to in Section 244 is, for the purpose of the Civil Procedure Code, a decree under the special words of Section 2, although it is not a decree under the general words of that section.
7. But of course, it does not follow that because the Legislature have provided that for a special purpose an order under a special section should be technically a decree that such an order is a judgment within the meaning of Article 15 of the Letters Patent.
8. The preliminary objection is allowed.
9. The appeal is dismissed with costs.