Ganga Nath, J.This is an appeal by a decree-holder against an order of execution Court staying execution of a decree under the Temporary Postponement of Execution of Decrees Act (10 of 1937). The decree is for costs. Two questions arise in this case: (1) whether a decree for costs is one to which the Act applies, and (2) whether an appeal lies from such an order. As regards the first point, it has been held by a learned single Judge in Ex. F.A. No. 217 of Ram Narain v. Ashagri Begum, Ex. F.A. No. 217 of 1939 decided on 8th January 1940 that the Act does not apply to a decree for costs. It was observed there:

He (learned Counsel) suggests that a decree for costs is a decree for money. In so far as that goes the liability to pay costs was not incurred before the Act came into force.

2. As regards the second point, there are conflicting decisions. In S.A. No. 687 of Shib Charan Das Vs. Brij Mohan Singh, it has been held by a learned single Judge that an appeal lies. There it was observed:

Learned counsel has referred me to the case in Mangat Rai and Others Vs. Babu Ram , in which it was held that an order for stay did not amount to a decree. I can quite see that ordinarily an order for stay does not amount to a decree because no question between the parties is determined, that is, there is no determination of the right of one party or the other. The Court is merely exercising its discretion. In the case before me, however, the judgment-debtor claimed as of right that the decree could not be executed and the decree-holder claimed that it could be. There was therefore a distinct question of the rights and liabilities of the parties in respect of the execution of the decree and I have no doubt that an appeal lay from the order passed.

3. This decision was approved of by a Bench of two Judges in Civil Revision No. 271 of Narottam Das v. Ballu Ram Bhagwati Prasad, Civil Revn. No. 271 of 1938, Decided on 20th December 1939. There it was observed:

We are informed by learned Counsel appearing for the applicant that it has been held by Allsop J. on 13th December 1939, in S.A. No. 687 of Shib Charan Das Vs. Brij Mohan Singh, that an order on an application of this nature comes within the purview of Section 47, Civil P.C., and that an appeal lies against such an order. It seems to us that the view taken by our learned brother in the case just mentioned is correct.

4. In a subsequent case Ex. F.A. No. 349 of Kalicharan v. Khunni Lal, Ex. F.A. No. 349 of 1938 Decided on 12th January 1940 the same Bench has taken a different view. It was observed there:

Reliance is placed on the decision in Rati Singh and Another Vs. Kunwar Damodar Lal, . In our opinion the preliminary objection is well founded. It has been argued by the learned Counsel for the appellant that the orders granting or refusing stay of execution which are dealt with by the ruling relied upon by the respondent and the rulings mentioned in the judgment of that case deal only with cases in which the Court had passed an order in the exercise of its discretion whereas the present case is concerned with a statutory right to obtain a stay, and it is contended that the ruling is therefore not applicable. In our opinion an order granting or refusing a stay remains an order granting or refusing a stay, irrespective of the ground on which the application for stay was based. Where the judgment-debtor bases his application for stay on a statute, or on some other ground, the order passed will still remain an order which does not amount to the determination of such questions which have been held to be within Section 47 of the Code. We hold therefore that no appeal lies against the order complained of.

5. As there is a conflict of opinion on the second point, it is desirable that this point as well as the other point, which is of general importance and arises in most of the cases, may be conclusively decided. Let this case be laid before the Honble Chief Justice for its decision by such Bench as he may think proper.

Thom, C.J.

6. This is a decree-holders appeal arising out of execution proceedings. The respondent filed a suit against the appellant claiming the cancellation of a certain sale deed. The suit was dismissed and the appellant obtained a decree for costs. He sought to put this decree into execution. The respondent, the judgment-debtor, thereupon applied for a stay of the execution proceedings u/s 3, Temporary Postponement of Execution of Decrees Act, Act 10 of 1937. The relevant portion of Section 3 is as follows:

3(1). All proceedings in execution of any decree for money...passed by a Civil Court on the basis of a liability incurred before the passing of this Act, in which the judgment-debtor or any one of the judgment-debtors is, at the date of the passing of this Act, an agriculturist shall be stayed during the period this Act shall remain in force, if such judgment-debtor does not pay more than Rs. 250 as land revenue or rent, or more than Rs. 30 as local rate for revenue-free land or if, the total of revenue, rent and ten times the local rate payable by him or any two of them does not exceed Rs. 250.

7. The respondents application was allowed and the learned Civil Judge in the execution Court stayed the execution of the decree for costs on 29th October 1938. The decree-holder appeals and contends that the provisions of Section 3, Temporary Postponement of Execution of Decrees Act, does not cover the case of a decree for costs. The respondent has taken a preliminary objection that no appeal lies. We shall deal with this objection first. It was contended that the order of the stay passed by the execution Court was not a decree u/s 47, Civil P.C., and that therefore no appeal lay against the order. In support of this contention learned Counsel relied upon the decisions in Husain Bhai and Another Vs. Beltie Shah Gilani, , Mangat Rai and Others Vs. Babu Ram and Rati Singh and Another Vs. Kunwar Damodar Lal, . In Husain Bhai and Another Vs. Beltie Shah Gilani, the facts were that the execution Court passed an order staying the execution of a decree for a period of roughly ten weeks on payment of Rs. 5000 by the judgment-debtor. The Bench before whom the order was challenged in appeal held that no appeal lay in respect that there had been no conclusive determination of the rights of parties in a controversy relating to the execution of a decree. In Mangat Rai and Others Vs. Babu Ram Sulaiman A.C.J. and Banerji J., held that an order of the executing Court rejecting an application for stay of sale does not amount to a final judicial decision and is therefore not appealable. In the course of their judgment it is observed in reference to the order under appeal:

It did not involve any question relating to the execution of the decree which would amount to an adjudication conclusively determining the rights of the parties with regard to any of the matters in controversy. Section 47 has to be read with Section 2, Civil P.C., and reading the two Sections together it is obvious that every order passed by an execution Court is not necessarily appealable. It is only appealable when it determines the rights of the parties with regard to any matter in controversy. A refusal to postpone a sale did not determine the rights of the parties within the meaning of that Section.

8. In Rati Singh and Another Vs. Kunwar Damodar Lal, a Bench of this Court held that there the execution Court ordered that recourse must be had to the property in the hands of certain defendants in the first instance, and if the decree-holder was unable to realise his decree money from such property, then he was to be entitled to proceed against the property of other defendants, that as the order amounted to a temporary stay of execution against the latter defendants and merely decided the mode in which the execution was to proceed, there was no conclusive determination of the decree-holders right to proceed against them, and therefore the order was not a decree as defined in Section 2(2) and was not appealable. In the course of his judgment King J. observes:

An order to be appealable must be an order which finally or conclusively determines a question at issue between the parties relating to the execution of a decree.

9. These decisions it will be observed are no authority for the proposition that all orders staying the execution of decrees u/s 47, Civil P.C., are not decrees and not appealable. The test to be applied in determining whether an order is appealable or not may be stated thus: does the order conclusively determine the rights and liabilities of parties in a controversy which has arisen between them and which relates to the execution, discharge or satisfaction of a decree Now in the present instance there was a controversy between the parties as to the judgment-debtors right to have the execution of the decree postponed during the operation of the Temporary Postponement of Execution of Decrees Act, That Act conferred upon judgment-debtors who were agriculturists a very valuable right. The right conferred by Section 3 was one which was in dispute between the parties in the execution Court. The order of the Court proceeded upon a determination of that question. The Court conclusively and finally decided that the judgment-debtor was an agriculturist and entitled to the benefits of Section 3 of the Act. Once the judgment-debtor had established that he was an agriculturist then he was of right entitled to stay of the execution of the decree against him. The Court had no discretion in the matter.

10. The provisions of Section 3 are mandatory and once the Court has passed an order staying the execution of a decree in virtue of the provisions of Section 3 the decree-holder has no right to apply to the Court for the execution of his decree. There therefore was in the present instance a conclusive determination of a question arising between the parties and which related to the execution, discharge or satisfaction of a decree. The order therefore in our judgment was appealable. This decision does not imply that every order passed by the execution Court staying the execution of a decree is appealable. Innumerable orders including orders of stay, and relating to the execution, discharge or satisfaction of decrees are passed by execution Courts u/s 47, Civil P.C. A large proportion of these orders are unappealable. But if an order has the effect of finally determining as between the parties an issue which relates to the execution, discharge or satisfaction of a decree then such an order is in our judgment appealable u/s 47. Whether any particular order is or is not appealable is a question which must be determined upon a consideration of the particular facts and circumstances of the case in which the order is passed.

11. The appellant contended as already observed that Section 3, Temporary Postponement of Execution of Decrees Act, does not apply to a decree for costs. It was urged that Section 3 applied only to decrees for money passed by a Civil Court on the basis of a liability incurred before the passing of the Act and that a decree for costs was not a decree on the basis of such liability. There is no force in this argument. The decree for costs was passed precisely because there was a liability. The plaintiff, judgment-debtor, came into Court with a false claim against the decree-holder. His claim was dismissed and he had incurred a liability to indemnify the defendant in respect of the costs of the defendant in the litigation. In passing the decree for costs the Court did not, as was contended for the judgment-debtor, create the liability. The decree was passed because there was the liability to pay the successful defendant in the suit his costs. The decree for costs was passed before the Temporary Postponement of Execution of Decrees Act came into force. It was passed upon a liability which had been incurred before the passing of the Act. The judgment-debtor therefore was clearly entitled to have the decree stayed under the provisions of the Act. In the result the appeal is dismissed with costs.