1. This is a Letters Patent Appeal against an order of Curgenven, J., ordering a stay of further proceedings in the suit on terms. The suit is a mortgage suit and a preliminary decree has been passed and an appeal against it preferred to this Court. Stay of further proceedings pending the hearing of the first appeal was asked for by the appellant and granted by the learned Judge on terms. Appellant is the judgment-debtor under the decree and he objects to the terms imposed by the learned Judge as being too onerous and presents this Letters Patent Appeal on that ground.
2. A preliminary objection is taken by the respondent-decree-holder that the appeal does not lie. We think, the objection must be sustained. The interpretation of 'judgment' in Clause 15 of the Letters Patent which is given by the learned late Chief Justice Sir Arnold White in Tuljaram Rao v. Alagappa Chettiar 8 Ind. Cas. 340 : 35 M. 1 : (1910) M.W.N. 697 : 8 M.L.T. 453 : 21 M.L.J. 1 has, in this Presidency at least, been followed so consistently that it has become for all practical purposes settled law here and we can see no reason for departing from that interpretation. The test there given is, where the order is in the course of the suit or proceeding, does it in effect put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned; and if the order is in an independent proceeding which is ancillary to the suit, it should be in some proceeding taken with a view to rendering the judgment effective if obtained. The learned Chief Justice also dealt with orders and petitions for stay of execution and said that he would be prepared to hold that an appeal would lie from an order refusing a stay of execution.
3. Now, clearly none of these tests will apply to the present case. The suit itself has not yet come to an end. We are not prepared to accept the argument of the appellant that a mortgage suit has finally come to an end with the passing of a preliminary decree. That is contrary to the scheme of the present Civil Procedure Code. So far from the preliminary decree putting an end to the suit, execution cannot begin until after the final decree is passed and the property cannot be put up for sale until then. The appellant's petition which was heard by the learned Judge was designed to stay a sale of the property and it can equally be put in after the passing of the final decree. The order under appeal itself is obviously not a final order putting an end to the proceedings; it merely adjourns the suit if the appellant complies with its terms, and, if he does not, the suit goes on.
4. The appellant is unable to quote any ruling in his favour. Cases in which an appeal has been allowed in execution matters are appeals against orders refusing to stay execution: see Sonachalam Pillai v. Kumaravelu Chettiar : AIR1924Mad597 Govinda Ramanuja Pedda Jeeyanvarlavaru v. Krishnamacharlu : AIR1927Mad398 and Pethaperumal Chettiar v. Chidambaram Chettiar : AIR1927Mad592 . These are not in point. Here, therefore, no refusal to stay execution. Execution has been stayed on terms, and the appellant is dissatisfied only by the terms imposed. The order puts an end, therefore, neither to the suit nor to any request for stay of execution. We, therefore, hold that no appeal lies and dismiss the appeal with costs.