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Nihal Chand, Alias Chutto Lal, and ors. Vs. Rameshari Dassee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal214
AppellantNihal Chand, Alias Chutto Lal, and ors.
RespondentRameshari Dassee
Excerpt:
execution of decree - stay of execution--appeal from order--civil procedure code (act x of 1877), sections 243, 244 and 588. - .....of the judgment-debtor, on the ground that the judgment-debtor had brought a suit against the present decree-holders and others. the court, in its discretion, stayed the execution of the present appellants' decree pending the decision of the regular suit brought by the judgment-debtor. it ordered that the attached property should remain under attachment, but proceeded to strike the execution-case off its file.2. it appears to us that the appellants have no right of appeal to this court in this matter. they contend that it is an order determining a question between themselves and the judgment-debtor under section 244, and that, that being so, the order amounts to a decree within the meaning of section 2.3. we think that there are two reasons against this contention being allowed......
Judgment:

Tottenham, J.

1. The order against which this appeal has been preferred purports to have been passed under Section 243 of the Code of Civil Procedure, on the application of the judgment-debtor, on the ground that the judgment-debtor had brought a suit against the present decree-holders and others. The Court, in its discretion, stayed the execution of the present appellants' decree pending the decision of the regular suit brought by the judgment-debtor. It ordered that the attached property should remain under attachment, but proceeded to strike the execution-case off its file.

2. It appears to us that the appellants have no right of appeal to this Court in this matter. They contend that it is an order determining a question between themselves and the judgment-debtor under Section 244, and that, that being so, the order amounts to a decree within the meaning of Section 2.

3. We think that there are two reasons against this contention being allowed. First of all we think that an order staying execution under Section 243 is not one which comes within the purview of Section 244; and secondly, if it could be said to come within the purview of Section 244, we do not think that this order amounts to a decree as defined by Section 2, as it is not an adjudication of any right claimed, nor does it appear to us to be a determination of any question mentioned in Section 244. It seems to us that the Court below has not finally determined any question as between the parties; it has simply postponed the determination of a matter before it. It is quite clear that, unless this order amounts to a decree, there is no appeal against it; for it is not one of those mentioned in Section 588, against which an appeal it allowed as against an order; and we being of opinion that it is not a decree, we are compelled to dismiss the appeal with costs.


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