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Audh Behari Singh Vs. Sailendra Nath Bhattacharjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 43 of 1953
Judge
Reported inAIR1954Cal339
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 47 and 96
AppellantAudh Behari Singh
RespondentSailendra Nath Bhattacharjee
Appellant AdvocateSushil Kumar Biswas and ;Anil Kumar Das Gupta, Advs.
Respondent AdvocateAmiya Kumar Mukherjee, Adv.
DispositionAppeal dismissed
Cases ReferredAdikappa Chettiar v. Chandra Sekhara Thevar
Excerpt:
- .....civil p. c. within the meaning of section 2(2) of the code and will thus be a decree under the code and appealable as such under section 96 of that statute.the order before their lordships in the case, cited above, was quite of a different nature. it was a mere stay order involving no determination of any such rights or liabilities. in the present case there can be no doubt that the order of the learned munsif, construing the entire decree as subject to the condition of permission, therein mentioned, and holding that no execution was possible in law unless the condition was complied with, is clearly an order deciding and conclusively determining 'some question relating to the rights and liabilities of the parties with reference to the relief granted by the said decree.' the order,.....
Judgment:

P.N. Mookerjee, J.

1. This appeal arises out of a proceeding under Section 47, Civil P. C. The proceeding was started in connection with a decree for ejectment. That decree was in the following terms :

'Plaintiff will get khas possession of Uie suit lands by ejecting the defendant. Defendant will remove the Mandir and other structures in the suit land within 3 months from 30-9-39 and that in default the plaintiff will remove them at the cost of the defendant subject to the condition laid below.

If structures other than the Mandir, are not removed by the defendant within three months from that date, they will be removed by the plaintiff at the cost of the defendant as ordered above. But the Mandir will be removed only after obtaining permission from the proper authorities responsible for law and order. If such permission is obtained, plaintiff will remove the Mandir after the expiry of three months from the date of the judgment at the cost of the defendant.'

2. Admittedly, the decree-holder applied for execution of the decree without obtaining permission as quoted above. There was, accordingly, the objection under Section 47, Civil P. C., filed by the judgment-debtor, on the ground that without such permission the execution was not maintainable.

The learned Munsif taking the view that the decree could not be executed unless the permission, referred to above, had been obtained stayed further proceedings to enable the decree-holder to obtain the necessary permission and he himself took the step of writing a letter to the Officer-in-charge calling for a report within 15 days 'whether the temple in question may be removed peacefully and without endangering peace and order' and in the meantime further proceedings in execution were stayed.

From, this order of the learned Munsif an appeal was taken by the decree-holder and the learned Subordinate Judge, being of the opinion that, in any event, the condition as to permission, as mentioned above, attached only to the removal of the Mandir, reached the conclusion that there was no bar to the decree-holder's getting possession of the other parts of the suit lands including 'structures other than the Mandir', situated thereon, and he directed execution to proceed accordingly.

Against this order the present appeal has been preserved by the judgment-debtor.

3. On the merits it is difficult for the Appellant to say anything against the order of the learned Subordinate Judge. The order is rather liberal to the judgment-debtor inasmuch as, although the condition imposed is possibly open to serious legal objection, the learned Subordinate Judge has accepted the same and stayed execution, so far as the Mandir is concerned, to which alone the condition was attached and has ordered the execution to proceed with regard to the other parts of the suit property. Clearly, therefore, the appellant judgment-debtor can have no legitimate grievance on the merits.

4. Mr. Biswas, however, who appears for the appellant, contends that the appeal before the learned Subordinate Judge was not maintainable in law.

The substance of his argument is that an order staying execution is not open to appeal and in support of his point of view he relies on the case of -- 'Rajendra Kishore v. Mathura Mohan' 25 Cal WN 555 (A). That case, however, does not assist the appellant,

It is fairly well settled now that an order staying execution if it conclusively determins the rights and liabilities of the parties with reference to the relief granted by the decree will be 'the determination of a question under Section 47', Civil P. C. within the meaning of Section 2(2) of the Code and will thus be a decree under the Code and appealable as such under Section 96 of that statute.

The order before their Lordships in the case, cited above, was quite of a different nature. It was a mere stay order involving no determination of any such rights or liabilities. In the present case there can be no doubt that the order of the learned Munsif, construing the entire decree as subject to the condition of permission, therein mentioned, and holding that no execution was possible in law unless the condition was complied with, is clearly an order deciding and conclusively determining 'some question relating to the rights and liabilities of the parties with reference to the relief granted by the said decree.' The order, therefore, was appealable in law and the appeal before the learned Subordinate Judge was thus clearly competent.

5. In reaching the above conclusion I have considered the relevant decisions bearing on the question, raised by Mr. Biswas. At one time there was some divergence of judicial opinion on this point but as I have already said the law is now fairly well settled in favour of the competency of an appeal from an order of the type, involved in this case.

The conflict really arose on or because of the omission of the words 'or relating to the stay of execution thereof' from the old Section 244 when it was re-enacted in the Code of 1908 as the present Section 47. These words were not in the original Section 244 of the Code of 1882 but were later added by amendment in 1888 and they were again omitted in the corresponding Section 47 of the later Code of 1908.

It was, consequently, ruled in some cases that the change implied that a stay of execution or refusal thereof would not be a question under the new Section 47 and that, accordingly, an order in that behalf whether granting or refusing stay would not attract the definition of a decree as contained in Section 2(2) of the Code and so would not be appealable.

There was also a growing volume of case lawaffirming the other point of view, namely, that the words omitted were superfluous and meant no change of law and that notwithstanding the amendment of the statutory language the question of stay of execution would still be one relating to execution, discharge or satisfaction of the decree and would thus come within Section 47 for purposes of Section 2(2) of the Code which defined 'decree', if it involved determination of some question relating to the rights and liabilities of the parties with reference to the relief granted by the decree' and, in such event, it would sufficiently attract Section 2(2) of the Code to make it a decree under that statute and would thus be appealable as such.

This latter view gradually asserted itself and eventually became more or less firmly established : vide e.g., -- 'W. T. Halai v. Chaturbhuj Gopalji' AIR 1915 Cal 122 (B); and -- 'Nafar Chandra v. Kali Pada Das' : AIR1940Cal257 . It is also interesting to note that in the case, cited by the appellant, viz., -- '25 Cal WN 555 (A)', the decision in -- 'AIR 1915 Cal 122 (B)', which clearly supports this view was cited with approval.

On some occasions the swing of the pendulum even reached almost the opposite extreme, namely, that all orders staying execution would be appealable (Vide e.g., -- 'Durga Devi v. Hans Raj' AIR 1930 Lah 187 (D) ) but, in any event, it is safe on the authorities to accept the test, quoted above, as a useful practical guide in such matters.

That test, as I have already said, is amply satisfied in the present case and that is enough for my present purpose. Whether the more extreme view expressed in the Lahore case cited is correct or not and whether it receives any support from the decision of the Judicial Committee in that oft-quoted case of --'Adikappa Chettiar v. Chandra Sekhara Thevar' , is a matter on which I need not express any final opinion now and I would just content myself by merely observing that the decision of the Judicial Committee may well be construed as based on the test, quoted above, on the line of reasoning adopted in -- ' : AIR1940Cal257 ' and may not thus necessarily support the extreme Lahore view.

6. In the light of the foregoing discussion, I am bound to hold that the point, raised by Mr. Biswas in support of the present appeal, cannot be accepted. I, accordingly, dismiss this appeal with costs.


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