1. By his order dated 23-9-1953, Ramaswami J. directed that the taking of an account under Clause (1) of the decree in C. S. No. 39 of 1948 on the file of the sub Court of Coimbatore will be stayed pending App. No. 1097 of 1952 on the file of the High Court and that there would be no stay regarding any other portion of the decree In O. S. No. 39 of of 1948.
The main item of the decree in which stay of execution has been refused is one relating to the direction to defendants l to 4 to pay a sum of Rs. 7707 with interest at the rate of 6 per cent. per annum from 17-2-1947 till the date of realisation. It is alleged that this amount was due to the plaintiff because he had to pay sales-tax to the Government on account of the fact that the A licence was in his name though the business was conducted by the partnership consisting of plaintiff and defendants 1 to 4. During the period for which these amounts were due from the partnership, defendants 1 to 4 were in management and it was their duty to pay that sum though the licence stood in the name of the plaintiff.
On account of the failure of the defendants to pay that amount, the plaintiff was compelled to discharge the liability due to the Government arid the suit was, in addition to the prayer for taking of accounts, for payment of this amount from the defendants.
The Subordinate Judge, in addition to the direction to take accounts for a period subsequent to 7-11-1945, further ordered that defendants should pay that sum to the plaintiff with interest thereon. There was a further direction that in taking the accounts, the sales-tax due by the plaintiff for that period for his share be also taken into account. In the application by the defendants, the prayer was for a stay of the further proceedings relating to the taking of accounts and for execution of the decree regarding the Rs. 7707.
As stated, the learned judge stayed the further proceedings but refused to grant a relief to the defendants regarding the payment of Rs. 7707. It is against that portion of the order that the defendants have preferred the appeal and the question is whether that portion of the order refusing to stay the execution of the decree is a "Judgment" or not within the meaning of Clause 15 of the Letters Patent.
We do not propose to advert to all the cases, cited before us, but it becomes necessary only to consider the observations contained in the decisions subsequent to -- "Tuljaramraw v. Alagappa Chettiar', 35 Mad I (FB) (A) though there has been a body of case law prior to that taking a view that such an order would not amount to a judgment within Clause 15 of the Letters Patent, despite the fact that in -- 'the Justice of the Peace for Calcutta v. Oriental Gas Co.', 8 Beng LR 433 (B), Sir Richard Couch C. J. expressed an opinion 'obiter' that in cases where orders have been made in execution they would come within the definition of the word "judgment" in Clause 15.
The cases reported in -- 'Durga Prasada Nayadu v. Malikarjuna Prasada Nayadu', 24 Mad 358 (C> and -- 'Kodiba Sahib v. Rahimatulla Sahib', 3 Mad LT 307 (D) have taken the view that an order refusing stay of execution passed by a single Judge of the High Court would not amount to a judgment under Clause 15.
To the same effect are the observations of Petheram C. J. in -- 'Mohabir Prosad Singh v. Adhikari Kunwar', 21 Cal 473 (E), though that was a case where Section 608 of the old Code, corresponding to Order 41, Rule 5, C. P. C., a single Judge had directed security for costs in execution to be given and it was held that such an order was not a judgment.
The trend of decisions subsequent to -- '35 Mad 1 (PB) (A)' in this Court is consistently to the effect that an order of a single Judge refusing stay of execution is a judgment though there is to be seen a very minor discordant note that where execution has been stayed, it may not amount to a judgment. But there is one exception to that rule in the case reported in -- 'Vairavan Chettiar v. Ramanathan Chettiar', 14 Mad LW 701 (F), where Oldfield and Ramesam JJ. have held that the order of a single Judge sitting ia the Admission Court dismissing a petition for stay of execution is not a judgment within the meaning of Clause 15 and no appeal lies therefrom to a Division Bench on the ground that the earlier decision in -- '24 Mad 358 (C)' which took a similar view has not been overruled by the 'obiter dictum' in --'35 Mad 1 (PB) (A)'.
But, as will be shown presently, the large catena of case law subsequent to -- '35 Mad 1 (FB) (A)' is in favour of allowing an appeal against such an order under Clause 15.
We have already stated that this Bench is bound to follow the decision in -- '35 Mad 1 (FB) (A)' and as such it is now necessary to see how far even statements which may be 'obiter' in that case have been consistently not departed from in later cases. At p. 8 of -- '35 Mad 1 (PB) (A)' Sir Arnold White C. J. says thus :
"I should be prepared to hold that an appeal lay from an order refusing a stay of execution (the application for stay being an ancillary proceeding) though a contrary view was taken in --'24 Mad 358 (C)'."
Prom this observation it is clear that the Pull Bench has not approved of the dictum in -- '24 Mad 358 (C)', and the view taken in -- '14 Mad LW 701 (P)' that the so-called 'obiter dictum' has not overruled -- '24 Mad 358 (C)' does not appeal to us. The decision in -- '21 Cal 473 (E)' has been followed in -- '24 Mad 358 (C) which, as we have shown, has not been approved in -- '35 Mad 1 (FB) (A)' and therefore so far as this Court is concerned, -- '21 Cal 473 (E)' cannot be deemed to be any authority.
The decision in -- '3 Mad LT 807 (D)' simply follows -- '24 Mad 358 (0)' and as such is open to the same criticism. Even Krishnaswami Ayyar J. at pp. 19 and 20 of -- '35 Mad 1 (FB) (A)' does not approve of -- '24 Mad 358 (C)' and -- '21 Gal 473 (E)', but would prefer as sounder view the expression of opinion in -- 'Mt. Brijcoomaree v. Ramrick Pass', 5 Cal WN 781 (O), though the latter decision related to an order made by a single Judge refusing to stay the issue of probate and the discharge of a receiver appointed in a probate action.
Discussing the Madras cases which have taken the view tnat an appeal lies under such circum-stances in a chronological order we have next to refer to -- 'Srinivasa lyengar v. Ramaswami Chettiar', AIR 1916 Mad 1220 (2) (FB) (H) where, though the question that arose before the Full Bench was whether an order of a single Judge rejecting a petition to send for the records and to revise the judgment of a lower Court exercising small cause jurisdiction is a Judgment within the meaning of Clause 15 of the Letters Patent as it then stood and was therefore appealable, the Court, in deciding the point followed the observations in -- '35 Mad 1 (FB) (A)'; and Seshagiri Aiyar J. who delivered the judgment of the Full Bench stated that -- '35 Mad 1 (FB) (A)' was binding on them.
When the question arose subsequently as to whether an order of a single Judge pending disposal of a second appeal on an application for interim injunction amounts to a Judgment under Clause 15, it was held by Spencer and Devadoss JJ. in --'Venkata Chinnayamma Rao v. Subbamma Rao', Am 1935 Mad 586 (J) that the Bench should be guided by the observations of White C. J. in-- '35 Mad 1 (FB) (A)' & as such an order would amount to a judgment. The learned Judges distinguished -- '14 Mad LW 701 (P)' and -- '24 Mad 358 (C)', by stating that the orders in those cases were passed in execution and did not directly affect the question before them, nor did they diminish the authority of -- '35 Mad 1 (PB) (A)'.
How far the distinction is justifiable need not concern us at this stage for we are unable to find any substantial difference between an application for an order of interim injunction pending a second appeal and one for stay of execution. In any event -- '35 Mad 1 (FB) (A)' has been accepted as binding authority.
2. An important pronouncement where the point is practically 'ad idem' has been made by Krishnan and Waller JJ. in -- 'Sonachalam Pillai --v. Kumaravelu Chettiar', AIR 1924 Mad 597 (J), where it has been categorically laid down that an order of a single Judge of the High court refusing stay of execution of a decree of a mufassal Court pending an appeal to the High Court is a judgment within the meaning of Clause 15 of the Letters Patent.
For that dictum the authority given is -- '35 Mad 1 (PB) (A)'. The learned Judges referred to -- 'Desouza v. Coles', 3 Mad HCR 384 (K) and -- '8 Beng LR 433 (B)' before discussing the observations of the Full Bench in -- '35 Mad 1 (PB) (A)'. After extracting a passage from the Judgment of the Full Bench at p. 7 of the report, where Sir Arnold White C. J. lays down the essentials of a judgment and nothing what Krishnaswami Alyar J. has also held in that case, they have stated that the observation at p. 8 that an appeal lay from an order refusing stay of execution, though in the nature of an 'obiter dictum', was binding on them.
As almost all the cases which discussed this question prior to that date have been amply considered in--'AIR 1924 Mad 597 (J)' and as we are in agreement with the discussion and reasoning therein, it is unnecessary for us to dilate at any length upon the reasoning given by the learned Judges. They also referred to -- 'Ruldu Singh v. Sanwal Singh', AIR 1922 Lah 380 (2) (L) where the learned Judges of the Lahore High Court elaborately discussed all the cases on the point and followed -- '35 Mad 1 (FB) (A)'. We agree with the learned Judges who decided -- 'AIR 1924 Mad 597 (J)' in their view that -- '24 Mad 35a (C)' and -- '14 Mad LW 701 (P)' have been wrongly decided and are no longer authority. No decision has been brought to our notice in our Court which has so far either expressly or by necessary implication, dissented from the view taken in--'AIR 1924 Mad 597 (J)' which has stood the test of time for more than 30 years and on the principle of 'stare decisis' at least we should follow that decision.
3. Three years later, a Bench consisting of Wallace and Madhavan Nair JJ. in -- 'Jeeyan-garlavaru v. Krishnamacharlu', AIR 1927 Mad 398 (M) was confronted with the argument that the series of decisions of this Court up till then had been overruled by the observations of the Privy Council in -- 'Sevak Jeranchod Bhogilal v. Dakore Temple Committee', AIR 1925 PC 155 (N); but the learned Judges held that nothing like that has happened. The learned Judges expressly followed the observations in -- '35 Mad 1 (FB) (A)' and the decision in -- 'AIR 1924 Mad 597 (J)' and have also Stated that -- '24 Mad 358 (C)' and -- '14 Mad LW 701 (F)' are no longer good law. At p. 402 of the report Madhavan Nair J. observes thus: "So far as I can speak from experience, I may state that the practice in this Court ever since -- '35 Mad 1 (FB) (A)' has always been to allow appeals against orders like the one before us." The facts of the case before the learned Judges showed that it related to an order staying execution of a decree of a lower Court, by suspending an injunction, pending an appeal to the High Court. We are in agreement with the observations of the learned Judges. Wallace-J. at pp. 399-400 of the report refers to the large body of case law subsequent to -- '35 Mad 1 (FB) (A)' which took the view that orders by which either stay of execution has been refused or allowed are appealable under Clause 15 of the Letters Patent and most of those cases have already been considered by us. One significant fact, as pointed out by the learned Judge, is that despite the repeated rulings of various High Courts regarding the definition of the word "judgment" even when the Letters Patent was amended in 1919, no attempt was made to clarify what that word meant and it is all the more interesting to note that subsequent to --'AIR 1927 Mad 398 (M)' when the Letters Patent was amended in 1929, there was no idea of making any clear exposition of the meaning of the word "judgment" or under what circumstances an appeal would lie from the decision of a single Judge.
On the whole the consensus of opinion in our High Court up to -- 'AIR 1927 Mad 398 (M)' has been to consider that an order refusing stay of execution, or allowing stay' of execution, by a single Judge, pending an appeal, is a Judgment within the meaning of the term. All that we need say is that even after the lapse of more than 27 years since that decision was rendered, there Is no divergent path followed in this Court, to compel us to take a different view of the meaning of the word "judgment".
The above decision was followed without discussion by Ramesam and Madhavan Nair JJ. in --'Pethaperumal Chettiar v. Chidambaram Chettiar, AIR 1927 Mad 592 (O) by holding that an order of a single Judge of the High Court issuing an injunction and thereby staying execution proceedings of a decree obtained by one of the parties is a judgment.
4. The decision in -- '35 Mad 1 (FB) (A)' has been consistently and continuously followed in this Court and even as recently as March 1953, Rajamannar C. J. and Venkatarama Aiyar J. have delivered a judgment to that effect in -- 'Simrathmull v. Jugraj', (P),
though on the facts of that case they were of opinion that no appeal lay. The only discordant note that has been struck against the view of appealability where execution of a decree has been stayed is by Wallace and Thiruvenkatachariar JJ. in -- 'Nageswara Aiyar v. Ramanathan Chettiar', AIR1929 Mad 197 (Q), where they make a distinction between cases in which a stay has been refused and those in which a stay has been allowed. With due respect to the learned Judges we are unable to see the point of distinction. It has to be remembered that Wallace J. himself was a party to --'AIR 1927 Mad 398 (M)' where on the facts the Bench held that an appeal lay against an order staying execution. The more respectable (reasonable?) view seems to be that expressed in -- 'AIR 1927 Mad 398 (M)' and not what is expressed in -- 'AIR 1929 Mad 197 (Q)'.
5. The second line of argument of Mr. S. T. Srinivasagopalachari to bring the order appealed against within the definition of the word "judgement" is that such a decision amounts to a decree within the meaning of Section 2(2), C. P. C., and where a decree has been passed by a single Judge, an appeal lies. The expression of opinion of Tek Chand and Johnstone JJ. in--'Mt. Durga Devi v. Hans Raj', AIR 1930 Lah 187 (R)' to the effect that an order staying execution of a decree till the decision of the appeal clearly falls under Section 2(2) read with Section 47, C. P. C., and is appealable is cited before us to show that in the present case the order refusing stay of execution must also amount to a decree.
In the Code of 1882, in Section 244 the words "or to the stay of execution thereof" were present, which would make such an order appealable. What has to be considered is the effect of the omission of those words in Section 47 of the Code of 1908. The generally accepted view is that when an executing Court stays, or refuses to stay, the execution of the decree, such an order, if it is final, would come within the definition of the term execution, discharge or satisfaction of the decree in Section 47; but where an appellate Court under Order 41, Rule 5, C. P. C.. either stays or refuses to stay, that would not come within the definition of "decree" in Section 2(2) and as such would not be appealable.
'Krishnan Nair v. Kavalappara Moopil Naif', AIR 1915 Mad 41 (1) (S) is an authority for the proposition that orders under Order 41, R, 5 would not be decrees though that view has been somewhat dissented from recently by Horwill J. in -- 'Veera Raghavayya v. Koti Rattamma', AIR1948 Mad 524 (T). , Again in -- 'Desikachariar v. Ramachandra Reddiar', (FB) (U) the Full Benchdoubted the correctness of
the view taken by Rorwill J, in the case cited above. On the facts, the conclusion of Horwill J., might be justified because what happened in the case decided by Horwill J. was that a Court-which passed the decree was requested to stay the execution under Order 41, Rule 6 (2), C. P. C., pending an appeal from the decree itself. Here therefore it is the executing Court that functioned and not the appellate Court that restrained, or refused to restrain, the hand of the executing Court. Viewed in that light, nothing can be said against the decision of Horwill J.
If on the other hand, the order has been made by the appellate Court under Order 41, Rule 5, we are of opinion that the principles enunciated by Horwill J. cannot be extended to such circumstances. At p. 58 of -- (FB) (U)' Subba Rao J. in delivering the opinion of the Full Bench doubted the correctness of -- 'AIR 1948 Mad 524 (T)'. But the learned Judge has not referred to the fact that the application for stay was made to the executing Court pending an appeal against the decree and on that ground the decision of Horwill J. can be supported. We are in agreement with the learned Judge in thinking that if an application under Order 41, Rule 5, C. P. C., is made to an appellate Court then it would not amount to a decree. The correct view, as we have already stated, seems to be what is laid down in -- 'AIR 1915 Mad 41 (l) (S)' and not -- 'AIR 1930 Lah 187 (R)',
The Calcutta decisions, viz., -- 'Shamsuddin Ahmed v. Charu Chandra Biswas', AIR 1934 Cal 713 (V) & -- 'Lea Badin v. Upendra MohanRoy', AIR 1935 Cal 35 (W) which Mr. Srinivasagopalachari brought to our notice do not improve the situation any further, as they are not concerned with staying, or refusing to stay, execution of decrees.
6. That an order under Order 41, Rule 5, C. P. C., staying or refusing to stay execution of a decree is not a "decree" within the meaning of &. 2 (2), C. P. C., has been laid down by the Nagpur High Court in -- 'Ganpatrao Pande v. Gangadhar gita-ram', AIR 1943 Nag 282 (X) and this view being in consonance with that we think right, we are in agreement with it. We are therefore of opinion that where an appellate Court purports to act under Order 41, Rule 5 and refuses to stay, or stays, the execution of a decree, such an order could not be a decree within Section 2(2) of the C. P. C. and the second argument of Mr. Srinivasagopalachari therefore fails, though we are in agreement with him that it would amount to a Judgment under Clause 15, Letters Patent, as interpreted in --'35 Mad 1 (FB) (A)'.
7. On the merits it seems to us that Rama-swami J.'s order cannot be sustained 'in toto'. The learned judge has stayed that portion of the decree by which accounts were directed to be taken. But at the same time he ordered the appellants to pay the sum of Rs. 7707 with interest. Either the entire decree should have been stayed or there should have been no stay whatever, is what we feel in the circumstances,
In any event the appellants need not be saddled with the responsibility to pay the entire sum now. We therefore direct that Instead of paying the whole amount of Rs. 7707 with Interest thereon, the appellants do pay the respondent half that amount with interest at the rate of six per cent. per annum from 17-2-1947 on or before 31-7-1954. The judgment of the learned Judge is modified accordingly. There will be no order as to costs in this appeal.