(Prayer: Petition (disposed of an 16-2-1948) under S. 115 of Act V of 1908 praying the High Court to revise the order of the Court of the Subordinate Judge, Bezwada, dated 12-7-1947 in E.A. No. 260 of 1947 in O.S. No. 98 of 1945.)

An application was filed by the petitioners in the Court of the Subordinate Judge of Bezwada to stay the execution of the decree of that Court pending an appeal to the District Court, Kistna. Despite the mandatory provisions of O. 41, R. 6(2) of the Civil Procedure Code, the stay was refused. Hence this petition.

A preliminary objection has been taken that no revision petition lies; because the order complained of is an appealable one, it being a decree, since it falls within the mischief of S. 47 of the Civil Procedure Code.

In the old Code under S. 244 the executing Court was bound to decide all questions arising between the parties to the suit in which a decree was passed relating to the execution, discharge or satisfaction of the decree or to the stay of execution thereof The words in italics were omitted from the revised provision in the new Code (S. 47); and it naturally became a matter of contention whether the omission of these words meant that questions relating to the stay of execution of a decree were deliberately excluded by the Legislature from the scope of S. 47, or whether the words had been omitted because it was the well-settled law that questions relating to the stay of execution were questions relating to execution. The former view was taken by the High Court of Allahabad and in some case in Calcutta, while the latter view was taken consistently in Lahore, as well as in Subramania Pillai v. Kumaravelu Ambalam (39 Mad. 541) [LQ/MadHC/1915/94] . In Shivbasappa Chinnappa v. Marigowda Hoochagowda (53 Bom. 485), the question was left open. This question is of importance, because it would determine whether an order relating to the stay of execution is appealable or not. After four Judges in four decisions of the Lahore High Court had all agreed that such an order was appealable, the matter was very fully discussed in Mst. Durga Devi v. Hansraj (11 Lah. 402), in the light of the decisions of that Court and of later decisions in other High Courts; and the learned Judges held that such an order was appealable. They held that if an order was to amount to a decree, it had (1) to come within the mischief of S. 47 and (2) to conclusively determine the question. The learned Judges were of opinion that an order staying execution related to the execution of a decree and, further, that it was a conclusive determination of a question; because if a decree was stayed it put an effective end to the execution of the decree. If the appeal were dismissed, then the decree to be executed in the future would be the appellate Court decree. On the other hand, if the appeal were allowed, there could be no further execution; so, in any event, the determination was final and put an end to the execution of the decree of the trial Court.

There has been no direct decision of the Madras High Court on this point; but it was decided in Subramania Pillai v. Kumaravelu Ambalam (39 Mad. 541) [LQ/MadHC/1915/94] , that the scope of S. 47 of the Civil Procedure Code with regard to the petitions for stay of execution was the same as the old S. 244 and that the omission in the new Code of any reference to stay of execution was because it would be superfluous. It seems to me unnecessary to discuss as fully as was done in Mst. Durga Devi v. Hansraj (11 Lah. 402), the question whether, as regards the Court passing the order, the order conclusively determines the question. S. 47 says that all questions relating to the execution of the decree, shall be determined by the Court and S. 2(2) says that the term decree shall be deemed to include the determination of any question within S. 47 So if any question arising in execution is determined under S. 47 of the Civil Procedure Code it automatically becomes a decree by virtue of the wording of S. 2(2), whether the order conclusively determines the rights of the parties or not; so that it would seem to follow that if the decision in Subramania Pillai v. Kumaravelu Ambalam (39 Mad. 541) [LQ/MadHC/1915/94] , was properly decided, then it would directly follow that an order on an application to stay would be a decree within the meaning of S. 2(2) of the Civil Procedure Code. As affording some indirect support for the decision in Subramania Pillai v. Kumaravelu Ambalam (39 Mad. 541) [LQ/MadHC/1915/94] , a reference to the decisions in Melamal Vittil Krishnan Nair v. Kavalappara Moopil Nair (27 M.L.J. 171) and Thirumalai Gounder v. Town Bank Ltd., Pollachi (58 Mad. 230 [LQ/MadHC/1934/193] =40 L.W. 704), may be made. In the former case, the learned Judges were considering whether an appeal lay from an order passed under O. 41, R. 5 of the Code. Following the decision in Ramachandra v. Balmakund (29 Bom. 71), they held that it did not, because the order passed under that rule is not an order made by the executing Court; and so S. 47 would not directly apply. If the referenceapparently with approvalto Ramachandra v. Balmakund (29 Bom. 71), has any significance, then the learned Judges were of the opinion that if the order had been passed under O. 41, R. 6(2), it would have been appelable; for that was what was held in Musaji Abdulla v. Damodardas (12 Bom. 279) [LQ/BomHC/1888/12] , which was approved and distinguished in Ramachandra v. Balmukund (29 Bom. 71). The question now under consideration did not arise in Thirumalai Gounder v. Town Bank Ltd., Pollachi (58 Mad. 230 [LQ/MadHC/1934/193] =40 L.W. 704), though it may not be altogether without significance that the learned Judges considered the question of stay in an appeal on the assumption that an appeal lay.

The learned Advocate for the petitioner sought to distinguish Mst. Durga Devi v. Hansraj (11 Lah. 402), by pointing out that the argument relating to the applicability of S. 2(2) of the Code would apply to an order of stay of execution, but not to an order refusing stay of execution. In the former case, as the learned Judges pointed out, no further execution of the decree of the trial Court that passed it would be possible; but if stay was refused, then no matter was finally determined, because it would be open to the judgment-debtor to apply again for a stay. There is some force in this argument; but i f all questions determined under S. 47 of the Civil Procedure Code relating to execution of the decree are decrees within the meaning of S. 2(2) then no distinction can be drawn between an order directing that execution shall be stayed and an order directing that execution shall proceed.

The petition is therefore dismissed with costs as not maintainable.