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Rajendra Kishore Choudhury Vs. Mothura Mohan Choudhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in55Ind.Cas.228
AppellantRajendra Kishore Choudhury
RespondentMothura Mohan Choudhury and ors.
Cases ReferredRama Prasad Roy v. Anukul Chandra Roy
Excerpt:
civil procedure code (act v of 1908), section 47 - execution of decree--order staying or refusing to stay execution, nature of--appeal, whether lies. - .....the decree against him should be stayed. on the 5th july the learned subordinate judge refused to stay execution, and it is against that order that the present appeal has been preferred.4. on behalf of the respondent it is contended, inter alia, that against this order no appeal lies. the question then is, whether the order is one determining the question within the scope of section 47 of the code of civil procedure, 1908, and, therefore, appealable as a decree. in the civil procedure code of 1882, the corresponding section 244 as originally enacted provided that any question 'relating to the execution, discharge or satisfaction' of a decree should be determined by the court executing the decree. by reason of some conflict of decisions, by the amending act of 1888 to the words above.....
Judgment:

Teunon, J.

1. In this case it is said that he appellant and respondent were partners in a certain business, and the latter obtained a decree against the former for a sum of some Rs. 9,000 borrowed on a Hatchitta. This was on the 28th February 1918.

2. In execution of this decree, the respondent on the 10th September 1918 attached and seeks to put to sale his judgment debtor's properties.

3. On the 26th May 1919 the appellant before us brought a suit for accounts and for the sum that might thus be found due to him from the partnership business. Having instituted his suit on the 11th of June, the appellant next applied that pending the disposal of the said suit the execution of the decree against him should be stayed. On the 5th July the learned Subordinate Judge refused to stay execution, and it is against that order that the present appeal has been preferred.

4. On behalf of the respondent it is contended, inter alia, that against this order no appeal lies. The question then is, whether the order is one determining the question within the scope of Section 47 of the Code of Civil Procedure, 1908, and, therefore, appealable as a decree. In the Civil Procedure Code of 1882, the corresponding Section 244 as originally enacted provided that any question 'relating to the execution, discharge or satisfaction' of a decree should be determined by the Court executing the decree. By reason of some conflict of decisions, by the Amending Act of 1888 to the words above cited were added the words 'or relating to the stay of execution thereof.' These words have disappeared from Section 47 of the present Code.

5. On behalf of the appellant it is contended that the words have been omitted as being unnecessary and that the omission has made no alteration in the law. In support of this contention, reference has been made to certain observations to be found in a decision of this Court reported as Srinivas Prasad Singh v. Kesho Prosad Singh 12 Ind. Cas. 745 : 14 C.L.J. 489 at p. 495. and to the omission from Section 141 of the explanation added to Section 647 of the Code of 1882 of the Amending Act VI of 1892.

6. But the omission now under consideration is not the omission of an explanation but the omission of words deliberately inserted in the body of the law by an Amending Act. We are, therefore, constrained to the conclusion that a change in the law was intended, and that orders staying or refusing to stay execution are no longer to be considered as orders determining questions relating to the execution of the decree. In this view we are supported by the decision of this Court reported as Rama Prasad Roy v. Anukul Chandra Roy 27 Ind. Cas. 444 : 20 C.L.J. 512 at p. 516.

7. We must, therefore, hold that in the present case no appeal lies.

8. It is then urged that we should deal with the matter under Section 115 of the Code, but the learned Subordinate Judge has duly considered all the matters placed before him and in the exercise of his judicial discretion if he has committed any error, which we do not say he has done, the error is not such as brings the case within the scope of Section 115.

9. The appeal is dismissed with costs. Hearing fee is two gold mohurs.

10 Let the record be sent down without delay.

Beachcroft, J.

11. I agree that no appeal lies in this case; though I do so with some hesitation. For, prima facie, the words in Section 47 'all questions relating to the execution of the decree' seem wide enough to cover a refusal to stay execution, which, after all, is tantamount to a decision that execution may proceed. But as the Legislature has deliberately omitted from Section 47 the words which it considered necessary in 1888 to insert by an amendment of the Act, to indicate that questions relating to the stay of execution ware included in Section 244 of the Code, I infer that the intention was to. exclude those questions from the purview of Section 47.


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