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Malamal Vittil Krishnan Nair Vs. Kavalappara Mooppil Nair Avergal - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in25Ind.Cas.47
AppellantMalamal Vittil Krishnan Nair
RespondentKavalappara Mooppil Nair Avergal
Cases ReferredSee Ramchandra v. Balmukund
Excerpt:
civil procedure code (act v of 1908), section 47; order xli, rule 5 - order of appellate court refusing stay of execution of decree, appeal from. - - we think the objection is well-founded.1. the district judge passed an order under order xli, rule 5, refusing to stay the execution of a decree passed by the subordinate judge against which an appeal is pending before himself. this is an appeal against his order.2. a preliminary objection is taken that no appeal lies. we think the objection is well-founded. mr. ramachandra aiyar contends that the order falls within the purview of section 47 and is, therefore, appealable. but that section only applies to orders passed by the court executing the decree. in this case the district court is not the court executing the decree. see ramchandra v. balmukund 29 b. 71 : 6 bom. l.r. 780.3. we, therefore, uphold the preliminary objection and dismiss the appeal with costs.
Judgment:

1. The District Judge passed an order under Order XLI, Rule 5, refusing to stay the execution of a decree passed by the Subordinate Judge against which an appeal is pending before himself. This is an appeal against his order.

2. A preliminary objection is taken that no appeal lies. We think the objection is well-founded. Mr. Ramachandra Aiyar contends that the order falls within the purview of Section 47 and is, therefore, appealable. But that section only applies to orders passed by the Court executing the decree. In this case the District Court is not the Court executing the decree. See Ramchandra v. Balmukund 29 B. 71 : 6 Bom. L.R. 780.

3. We, therefore, uphold the preliminary objection and dismiss the appeal with costs.


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