1. This appeal is directed against an order by which theSubordinate Judge has refused to stay execution of a decree in a suit forpartition of joint property. The decree was originally made on the 10th January1912. One of the parties then applied, on the 18th March 1913, for amendment ofthe map attached to the decree. The decree was amended on the 13th September1913. Thereafter the party, at whose instance the amendment had been madeapplied for execution of the amended decree. One of the other parties thereuponapplied to the Court, which had granted the amendment, to set aside the decree,on the ground that the order had been made ex parte, without service of noticeupon him. He also applied for a stay of proceedings in execution till hisobjection had been heard and determined. We are informed that the Court has notyet investigated whether the order was made ex parte, but it has taken up fordisposal the question whether the proceedings should be stayed till thedetermination of that matter. The Subordinate Judge has refused to stayexecution of the amended decree; and the propriety of this order we are invitedto consider in this appeal.

2. A preliminary objection has been taken, on behalf of therespondent, to the effect that the order of the Subordinate Judge refusing tostay execution cannot be challenged by way of appeal. In answer to thisobjection, two points have been urged on behalf of the appellants: first, thatit is open to them to contend that the decree has been improperly amended, and,consequently, should not be executed, and, secondly, that the order refusing tostay execution is an order under section 47 of the Code of 1908 and isappealable as a decree.

3. In support of the first ground, reliance has been placedon the case of Abdul Hayai Khan v. Chunia Kuar 8 A. 377 : A.W.N. (1886) 127,which was considered by a Full Bench of the Allahabad High Court in the case ofMuhammad Sulaiman Khan v. Fatima 11 A. 314 : A.W.N. (1889) 107. It may beconceded that there are expressions in the judgment in the case of Abdul HayaiKhan v. Chunia Kuar 8 A. 377 : A.W.N. (1886) 127, which tend to support thecontention of the appellants; but we are not prepared to hold that it is opento a party, in proceedings in execution of a decree, to challenge the validityof the decree. It has been repeatedly held that a Court called upon to executea decree must take the decree as it stands. It has no power to go behind thedecree; in other words, it cannot entertain any objection as to the legality orcorrectness of the decree. The principle on which this view is supported isthat a decree, even though it is not according to law, is binding andconclusive between the parties till it has been set aside in appropriateproceedings. If any authority is needed for this elementary proposition,reference may be made to the decisions of the Judicial Committee of the PrivyCouncil in the cases of Sri Rajah Papamma Rao Bahadur v. Sri Vira PratapaPorkanda 23 I.A. 32 : 19 St. 249 : 6 M.L.J. 53 and Grish Chunder Lahiri v.Shoshi Shikhareshwar Roy 27 I.A. 110 : 27 C. 951 at p. 967 : : 4 C.W.N. 631. The Allahabad High Court, in the two cases mentioned, appear tohave proceeded on the theory that, when a decree is sought to be enforcedagainst a person, he is entitled to show that there is no valid decree inexistence; but it was overlooked that the validity of an existing and operativedecree cannot be determined by the Court which is called upon to execute it. Wehold, consequently, that it is not open to the appellants to go behind theamended decree, and to contend, in the proceedings now before us, that theamendment was improperly allowed. They have taken proceedings to test thepropriety of the order for amendment; but until they obtain a decision in theirfavour in such proceedings, they must be treated as bound by the decree.

4. In support of the second ground, reliance has been placedon the case of Musaji Abdulla v. Damodar Das 12 B. 279, which was doubted inthe case of Ramchandra Kasturchand v. Balmakund Chaturbhuj 29 B. 71 : 6 Bom.L.R. 780, and on the case of Sivasami Naickar v. Ratnasami Naickar 23 M. 568 :10 M.L.J. 314, which has been overruled in Madras [Sivagami Achi v. SubrahmaniaAiyar 27 M. 259 : 14 M.L.J. 57] and has been repeatedly doubted in this Court,Deoki Nandan Singh v. Bansi Singh 10 Ind. Cas. 371 [LQ/CalHC/1911/101] : 14 C.L.J. 35.

5. The question, whether the order of the Subordinate Judgeis or is not open to appeal, must be determined with reference to the terms ofsection 47 of the Code of Civil Procedure of 1908. The crucial point is,whether it relates to the execution of the decree and determines a questionarising between the parties to the suit on which the decree was passed. Now,the expression "relating to the execution of the decree" is vague andsweeping; but, as was pointed out in the case of Deoki Nandan Singh v. BansiSingh 10 Ind. Cas. 371 [LQ/CalHC/1911/101] : 14 C.L.J. 35, where the authorities on this subjectwill be found reviewed, the definition of the term "decree," ascontained in section 2, must be read along with the provisions of section 47.This makes it plain that it is not every order made in execution of a decreethat comes within section 47; if that were not so, every interlocutory order inexecution proceedings, such as an order granting or refusing process forexamination of witnesses, or an order on an application for adjournment, wouldbe appealable. It was pointed out by this Court in Srinibash Prasad Singh v.Kesho Prosad Singh 10 Ind. Cas. 444 [LQ/CalHC/1911/206] : 13 C.L.J. 681, upon a full examination ofthe principles and authorities bearing on this topic, that an order inexecution proceedings can come under section 47 only when it determines somequestion relating to the rights and liabilities of the parties with referenceto the relief granted by the decree, not when it determines merely anincidental question as to the mode of conduct of the proceedings: JogodishuryDebea v. Kailash Chundra Lahiry : 24 C. 725 at p. 739 : 1C.W.N. 374, Mukhtar Ahmad v. Muqarrab Hussain 15 Ind. Cas. 50 [LQ/AllHC/1912/168] : 34 A. 530 : 10A.L.J. 56. Consequently, if the Court allows execution to proceed, overrulingthe contention of the judgment-debtor that the decree has become inoperative bylapse of time, the order allowing execution to proceed is an order undersection 47, because the order in substance decides that the judgment-debtor isstill liable to have the decree enforced against him. On the other hand, whenthe Court has refused to stay execution of a decree on application made, not onthe ground that the decree was incapable of execution, but on the ground thatas a proceeding to test the validity of the decree was still pending noexecution should be allowed till its termination, it cannot be said that the orderdoes, in any way, determine a question relating to the rights and liabilitiesof the parties with reference to the relief granted by the decree. An order ofthis nature is of an interlocutory character and does not involve, directly orindirectly, an adjudication of the rights and liabilities of the parties:Mohabir Prasad Singh v. Adhikari Kunwar 21 C. 473. Srimantu v. Srimantu 24 M.358, Srinivasa Prasad Singh v. Kesho Prosad Singh 12 Ind. Cas. 745 [LQ/CalHC/1911/397] : 14 C.L.J.489. We are consequently clearly of opinion that the order of the SubordinateJudge refusing to stay execution is not an order under section 47, which hasthe characteristics of a decree under section 2 and is appealable as such.

6. The appeal is dismissed with costs, one gold mohur.

7. The Rule for ad interim stay is discharged, withoutcosts.

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Rama Prasad Roy Chowdhuryvs. Anukul Chandra Roy Chowdhury(01.04.1914 - CALHC)