1. We are invited in these Rules to direct that an appealfrom order be registered and that proceedings in execution be stayed during thependency of the appeal. The order in question was made on the 15th May 1909Under Section 47 of the Code of 1908. An appeal was lodged in this Court on the8th August, and on the assumption that the appeal was out of time, a Rule wasobtained calling upon the respondents to show cause why the appeal should nothe registered. Four days after the Rule had been granted, a copy of what isdescribed as a decree was attached to the memorandum of appeal. This decreeappears to have been signed by the Subordinate Judge on the 25th May 1909, andif time is taken to run from this date, admittedly no question of limitationrequires consideration. The question, therefore, arises whether the appellantis entitled to the benefit of the subsequent preparation of the decree.

2. Section 2 of the Code of 1908 defines a decree asincluding the determination of any question within the scope of section 47. Theterm judgment is defined to mean the statement given by the Judge of thegrounds of a decree or order, and the term order is defined to mean a formalexpression of (sic) decision of a Civil Court which is not a decree. It isclear, therefore, that in the case of an order quite as much as in the case ofa decree, there may be a judgment which gives a statement of the ground uponwhich the decree or order is based. It is obvious, therefore, whether an appealis preferred against a decree or an order, the memorandum ought to beaccompanied by a copy of the judgment as also by a copy of the decree or orderas the case may be. Now, it frequently happens that in cases of executionproceedings, although there is a judgment, an order, that is, the formalexpression of the decision, is not drawn up. In such cases, the concludingportion of the judgment which embodies the order may be treated as the orderagainst which the appeal is preferred. In such a contingency, it would besufficient for the appellant to attach to his memorandum of appeal a copy ofthe judgment alone, and time should run from the data of the judgment; where,however, as in the case before us, there is a judgment stating the grounds ofthe decision and a separate order is also drawn up embodying the formalexpression of the decision, copies of both the documents ought to be attachedto the memorandum, and the appellant is entitled to a deduction of the timetaken up in obtaining copies thereof. The case of Khirode Sundari Debi v.Jnanendara Nath Pal Chaudhuri 8 C.W.N. 283, which was decided under the oldCode, is not inconsistent with this view and is clearly distinguishable. Therethe learned Judges appear to have held that the judgment was the order, becausethe concluding portion of the judgment set out in full the order which wassubsequently reproduced, without any necessity, in a different documentdescribed as the decree. Here, however, it is quite clear that it was necessaryto draw up a separate order. By the judgment, the judgment debtor was directedto bear her own costs and to pay the costs of the decree-holder. A separateorder had, therefore, to be drawn up, setting out the costs of each party: andin fact when we examine the formal order, we find that this has been done. Inthis view, it follows that no question of limitation arises, because if theappeal is taken to have been presented on the day on which the copy of what iscalled the decree, but what is in reality an order having (sic) effect of adecree, was obtained and (sic) to the memorandum, the appeal is in (sic) But wedesire to add that even if time be taken to run from the date of the judgment,ample grounds have, in our opinion, been made out to justify an order in favourof the appellant Under Section 5 of the Limitation Act. No doubt, the affidavitfiled in support of the Rule is not as precise as it might have been. It isfairly clear, however, that the officer of the appellant who looked after thislitigation was ill for a considerable length of time, and the appellant who isa purdanashia lady was thereby placed in a position of considerable embarrassment.The result, therefore, is that Rule No. 3407 of 1909 is made absolute and theappeal is directed to be registered.

3. Rule No. 4423 of 1909 calls upon the decree-holder toshow cause why execution should not be stayed during the pendency of the appealpreferred against the order overruling the objection of the judgment debtor. Alarge sum of money is involved in this litigation, and, in our opinion, it isnot desirable that execution should proceed while the appeal is pending in thisCourt. At the same time, we think that the decree-holder is entitled to askthat the hearing of the appeal should be expedited. The Rule, therefore, forstay of execution is made absolute and execution is stayed during the pendencyof the appeal. As regards the appeal itself we direct that the preparation ofthe paper-book be dispensed with and it be set down for hearing this day forfortnight.

4. The decree holder is entitled to his costs of theseRules. We assess the hearing fee at one gold mohar in each case.

5. Rules male absolute.

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Kamala Dasi vs.Tarapada Mukerji (28.02.1910 - CALHC)