P L D 1957 Dacca 603 (PLP)

Laws Cited

Representation

• Muhammad Shehabullah for Petitioner.
• Mr. Shehabullah, learned Advocate for the petitioners, urges that the learned Munsif has no jurisdiction to vacate his order dated 13th June 1955 under section 151 of the Code of Civil Procedure as that order is appealable. He contends that the order staying execution or refusing to stay execution amounts to a decree under section 2, as it relates to the execution of a decree under section 47 of the Code of Civil Procedure and, in support of his point, he has relied on the case of Subramania Pillai v. Kunzaraveht Ambalam alias V. E. K. R. (39 Mad. 541); the case of Srinivas Prosad Singh v. Kesho Prosad Singh‑ (14 C L J 489); the case of Abinash Chandra Nag v. Bibhuti Bhusan Bose (44 C W N 587); the case of Choudhury Muhammad Abdul Washe, Mutwalli, and others v. Rai Bahadur Brojendra Mohan Maitra and another (49 C W N 532); the case of Sarat Chandra Gayan v. The Port Canning and Land Improvement Co. Ltd. anal another (80 C L J 35) and the case of Radhika Mahar Munshi v. Shyama Kishore Munshi (80 C L J 35).
• Mr. Khan appearing for the opposite‑parties argues that the order staying or refusing stay of execution is not a decree under section 2, as it does not relate to satisfaction or discharge of the decree and, as such, no appeal lies against the order passed by the learned Munsif on 13th June 1955, and his application under section 151 of the Civil Procedure Code was entertainable by the learned Munsif and, in support of his contention; he relies on the case of Janardan Triumbak Gadre v. Martand Triumbak Gadre (45 Bom. 241) and the case of Rajendra Kishore Choudhury v. Mathura Mohan Choudhury and others (25 C W N 555). The reason for decision in the case reported in 25 C W N 555 is that before the amendment of the Civil Procedure Code, 1882, section 244, as originally enacted provided that any question "relating to the execution, discharge or satisfaction" of a decree should be determined by the Court executing the decree but as there was some conflict of decisions, by the amending Act of 1888, to the words above cited, added the words "or relating to the stay of execution thereof." These words have disappeared from section 47 of the present Code and, as such, any order relating to stay of execution does not come under section 47, Civil P. C., and, as such, it is not a decree under section 2 of the Code and not appealable. The same view has also been held in 45 Bom. in the case of Janardan Triumbak Gadre v. Martand Triumbak Gadre at page 241. In the cases cited by the learned Advocate for the petitioners, the other High Courts have taken a different view. As regards the decision of the Calcutta High Court in 25 C W N 555 we find that the decision has not been followed in subsequent cases by the same High Court as will appear from the cases reported in 44 C W N 587, 45 C W N 241, 80 C L J 35. The present cases of the Calcutta High Court are to the effect that any order passed relating to stay of execution is an order under sec tion 47 and, as such, a decree under section 2 of the Code and is appealable. The same view has also been held by the Allahabad High Court in the case of Durga Devi v. Hans Raj' and others (A I R 1930 All. 187). The Madras High Court has also held that the order relating to stay of execution comes under section 47 and, as such appealable. The case, cited by the learned Advocate for the petitioner and reported in 6 D L R at 531 relates to section 69. of the East Bengal State Acquisition and Tenancy Act and it has, been held that any order relating to stay under section 69 of the Act is an order under section 47 of the, Code and, as such, appealable. He has also relied on another case reported at page 410 of the same volume where it has been held that section 47 of the Civil P. C. is too wide to include orders relating to stay of execution.
• Section 47 of the Civil P. C. provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. The phrase `relating to the execution' is wide enough to embrace, in my view, an order passed in relation to stay of execution. Though there has been an amendment in the Code of Civil Procedure, it has not in any way taken away the order relating to stay of execution from the scope of section 47. I am in full agreement with the decisions cited by the learned advocate for the peti tioners and I hold that any order granting or refusing stay of any execution proceeding comes within the scope of section 47 Civil P. C., and, as such, is a decree under section 2 and appealable.
• The next question urged by the learned Advocate for the petitioner is that as an appeal lies from an order relating to stay of execution, the application under section 151 of the Civil P. C. at the instance of the opposite‑parties was not entertainable and the, order on that application by the learned Munsif is without jurisdiction.
• Mr. Khan appearing for the opposite‑parties‑ submits that in view of the uniform decision of this Court he cannot contend that the contention of the learned Advocate for the petitioner is incorrect if it is found that an order staying execution is appealable. I find that the contention of the learned Advocate is 'a sound one and the order passed by the learned Munsif on the application under sec tion 151, Civil P. C., is without jurisdiction, as another remedy in the shape of an appeal was available to the opposite‑
• The next point urged by the learned Advocate for the petitioner is that after the passing. of a decree the original Court ceases to have any jurisdiction over the subject‑matter and the appellate Court is vested with jurisdiction and only the appellate Court can stay execution under Order XLI, rule 5, of the Code of Civil Procedure and, as such, the orders of stay passed by the learned Munsif is without juris diction. I am sorry I cannot, accept this contention. The appellate Court will be in seisin of a case when an appeal is filed and, unless and, until an appeal is filed, the appellate Court is not in seisin of the case and the jurisdiction of the original Court is not taken away only because an order or decree is appealable.
• The next point urged by the learned Advocate for the petitioner is that only the executing Court has got jurisdiction to pass an order for stay and, in support of his conten tion, be has relied on the case of Saradakripa Lala v. The Comilla Bank, Ltd. (I L R 60 Cal. 1119). In that case it has been found that in view of provision of sections 37 and 42 of the Code of Civil Procedure an executing Court has power under Order XXI, rule 29, to stay or refuse to stay execution. Order XXI, rule 29, provides:
• From the aforesaid rule, it is apparent that the Court which passed a decree, after a suit is filed, has got ample jurisdiction to stay the execution of the decree till the disposal of the suit between the decree‑holder and the judgment- debtor of the former suit. It has nowhere provided that it is only the executing Court which can stay, but, from the aforesaid decision it is seen that the executing Court can stay only due to the provisions made in sections 37 and 42 of the Civil P. C. So, I find that there is no sub stance in this contention of the learned Advocate for the petitioner.
• Lastly, the learned ‑Advocate for the petitioner urges than it has not been shown that the present ‑suit has, been filed in the same Court, and, as such, the Court entertaining this Title Suit No: 57 of 1955 has no jurisdiction to stay the execution. It appears that the Title Execution case was filed in the Court of the Munsif, Sunamganj, and Title Suit No. 57 of 1955 has also been filed in the Court of the Munsif. Sunamganj, which is the same Court and, in view of the provision of Order XXI, rule 29, the learned Munsif was competent to pass any order.

Headnotes / Summary

Judgment & Decree