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Appeal from Appellate Order No. 88 of 1953 decided on 1st March 1954, against the Order of H. Ali, District Judge, Tippera at Comilla, dated the 5th October 1953, in Mis cellaneous Appeal No. 83 of 1953 affirming the order of S. Khurshed Ali Munsif, 4th Court, Comilla, dated the 24th April 1953.
--Ss, 2 & 47 Order relating to stay of execution‑Whether falls within section Interpretation.
Section 47 of the Civil: P. C: is wide enough to include orders relating to stay of execution. To say that questions relating to stay of execution is not embraced by "question relating to execution", is to adopt a hair‑splitting method of construction, which, though ingenuous, is too high for the common people. Law is made for the understanding and guidance of the people, and so it cannot be supposed that the Legislature did not keep that in view while enacting the section.
---S. 15‑Order refusing to stay execution on ground of non‑applicability of section‑‑Whether appealable‑Civil Pro cedure Code (V of 1908), Ss. 2 and 47.
An order refusing to stay execution on the ground that section 15 of the East Bengal Premises Rent Control Ordinance, 1951, does not apply, comes under section 2 (2) read with section 47 of the Civil P. C., and is as such appealable.
Abdus Salam for Appellant.
Prafulla Chandra Nag for Respondents.
‑The appellant holds a chandina holding under the respondents at Daulatganj Bazar. The respondents obtained an ejectment decree against him in 1951; and after the dismissal of the appeal, and second appeal preferred by him, put it into execution on the 7th of August 1952. During the pendency of the execution case; the East Bengal Premises Rent Control Ordinance (XXII of 1951) was extended to Daulatganj Bazar on the 10th of January 1953, (Notification No. 367 L. R.) on the 23rd of January, 1953 the appellant applied for stay of execution under section 15 (2) thereof, which is
"If in any suit or proceeding by a landlord against a tenant in possession of any premises for eviction of such tenant there from, a decree or order for the recovery of possession of such premises has been made before the date of commencement of this Ordinance on any of the grounds specified in clause (c) of the proviso to sub‑paragraph (1) of paragraph 10 of the Bengal House Rent Control Order, 1942, but the possession of such premises has not been recovered from the tenant, the execution of such decree or order shall be stayed until the landlord produces before the Court by which such decree or order may be executed or in which such execution is pending, as the case may be, proof that he was permitted by the Controller appointed under the Bengal House Rent Control Order, 1942, to institute such suit or proceeding or to prosecute such suit or proceeding or to recover possession of such premises by the execution of such decree or order or that he has been permitted by the Controller by an order in writing under subsection (3) of section 13 of the Calcutta Rent Ordinance, 1946, or under subsection (3) of this section to recover possession of such premises by the execution of such decree or order."
Stay was refused on the ground that the section was not attracted by the facts of the case. In this view the lower appellate Court also concurred. He, therefore, preferred this second appeal.
There is a preliminary objection; the respondents contend, that no appeal lies from the order refusing stay of execution. If this view is right, then, not to speak of the second appeal, the appeal before the Court of appeal below was incompetent.
The order is not appealable under Order XLIII, of the Civil P. C. The material question is whether it is appeal able as a decree under section 2 read with section 47 of the Code.
Section 47 provides that all questions arising between the parties to the suit, in which the decree was passed, or their representatives, and relating to execution, discharge or saris‑ faction of the decree, shall be determined by the Court executing the decree and not by separate suit. Clause (2) of section 2 provides that the term "decree" shall be deemed to include the determination of any question within section 47 but shall not include any adjudication from which an appeal lies as an appeal from an order. The extended definition of the term decree" follows the primary definition that the term "decree means the formal expression of an adjudication, which, so far as the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The question whether an order relating to stay of execution comes within section 47, is not free from difficulty, and has given rise to divergence of opinion dating back from the time when the Code of 1882 was in force. Under that Code it was held in a series of cases that the expression "an order relating to execution" was comprehensive enough to take an order relating to stay of execution. [Kristomohiny Dossee v. Bama Churn Nag Chowdhury and others (I L R 7 Cal. 733), Luchmeeput Singh v. Sita Nath Doss (I L R 8 Cal. 477), Udeyadeta Deb v. C. B. Gregson (I L R 12 Cal. 624), p. Steel & Co. v. lahchamoyi Chowdhrain and another (I L R 13 Cal. 111), Mahant Ishwargar v. Chudasam Manabhai and others (I L R 12 Bom. 30), Musaii Abdulla and another v. Damodardas (I L R 12 Bom.279), and Ghazidin v. Faqir Baksh (I L L 7 All. 73)]. But the contrary view was taken in Nihal Chand alias Chutto Lal and others v. Rameshari Dassee (I L R 9 Cal. 214). While amending the Code of 1888, the words "or to the stay of execution thereof" were introduced into clause (c) of section 244 (corresponding to present section 47). These words were again dropped, when the Code was amended in 1908. Since then a controversy has arisen as to whether these words were dropped as being a mere surplusage, or with a view to indicate that an order relating to stay of execution should not be regarded as an order relating to execution. In some cases it has been held that the omission of the words in the Code of 1908 was made with the intention of excluding such orders from section 47. [Janardan Triumbak Gadre v. Martand Triumbak Gadi a (I L R 45 Bom. 241), Rajendra Kishore Chaudhury v. Mathura Mohan Chaudhury and others (25 C W N 555), Hussain Bhai and another v. Beltie Shah Gilani (I L R 46 All. 733)]. In some cases the contrary view has been taken [Subramania Pillai v. Kumarvelu Ambalam alias V. E. K. R. Karuppia Kangani (I L R 39 Mad. 541), Srinivas Prosad Singh v. Kesho Prosad Singh (14 C L J 489), Sardar Khan v Fateh Din (A I R 1922 Lah 480), and Durga Devi v. Harts Rai and others (A I R 1930 Lah. 187).] It seems to me clear that the current of decisions, with which the Legislature must be presumed to have been acquainted, did not call for the addition of these words in 1888, for up to that time all the decisions, except Nihal Chand's case, adopted the view that section 244 (now section 47) covered orders relating to stay of execution. The introduction of these words in 1888 cannot be accounted for except on the hypothesis that the Legislature acted under the influence of excessive caution; and these were introduced not to expand but to emphasise the scope of the section. In my opinion, the omission in the Code of 1908 does not affect the scope of the section in any way. Reading section 47 as it is, it seems to me that it too wide to include orders relating to stay of execution. They say that question relating to stay of execution is not embraced by "question relating to execution" is to adopt a hair‑splitting method of construction, which, though ingeneous, is too high for the common people. After all, law is made for their understanding and guidance. It cannot be supposed that the Legislature did not keep that in view while enacting the section. If the stay relates to execution, a question relating to stay does undoubtedly relate to it. In Gazidin's case Mahmud J. pointed out that if stay of execution were held not to be a matter relating to execution "a fortiori would the proposition be true that an order dismissing an applica tion for execution as barred by limitation is a matter not 'relating to the execution of the decree', for whilst, in the one case, execution of the decree is temporarily suspended, in the other it is absolutely prohibited". In Durga Devi's case, after reviewing the previous cases, Tek Chand J. held that an order staying execution of a decree pending disposal of an appeal there from is appealable and is a decree under section 2 of the Code of Civil Procedure as it conclusively determines the very important right of the decree‑holder to reap the fruits of the decree forthwith. Mr. Nag has referred to Rajendra Kishore Chaudhury v. Mathura Mohan Choudhury and others, Janardan Triumbak's case, Parma Nand v. Mst. Rai Devi (A I R 1927 Lah. 852), U San Wa and others v. U Chit San and another (I L R 9 Rang. 354) and Hussain Bhai and another v. Beltie Shah Gilani, Parma Nand's case, a decision of a single judge was dissented from Durga Devi's case. The decisions in Rajendra Kishore Choudhury's case, Janardan Triumbak's case and U San Wa's case are based on the ground that after the omission of the words "or to the stay of execution thereof" orders staying or refusing to stay execution cannot be con sidered as orders determining questions relating to execution of a decree. In Hussain Bhai's case, the execution was stayed for a definite period, i.e., from 23rd July to the 6th of September on payment of a part of the decretal amount. This was no final order of stay but was an interlocutory order adjoining the case from one date to another on part payment. An order refusing to stay execution in spite of receipt of a notice under section 34 of the Bengal Agricultural Debtors Act has been held to be an order under section 47 Chowdhury Muhammad Abdul Washe Mutwalli and others v. Rai Bahadur Brojendra Mohan Maitra and another (49 C W N 532). So also it has been held that an order vacating a stay order passed on receipt of such a notice on the ground that the judgment debtors were not entitled to the remedies the Act, comes under that section : Nafar Chandra Sardar and others v. Kalipada Das (44 C W N 364). In the last‑mentioned case the reasons given by Nasim Ali J. were (49 C W N 532) that the question decided, namely, whether the judgment‑debtor was a debtor or not, was a question which the Court was bound to decide before execution could proceed, and (44 C W N 364) that the order conclusively determined, so far as the executing Court was concerned, that the judgment‑debtors were not entitled to the remedies provided by the Bengal Agricultural Debtors Act. Rau J. the other learned judge of the Bench, held that an order staying or refusing to stay execution upon the ground that execution is or is not barred by a special law, was an order under section 47 of the Code, and, as such appealable. These decisions are in favour of the appellant here.
An ejectment decree, to which section 15 of the East Bengal Premises Rent Control Ordinance, 1951, applies, cannot be executed until the decree‑holder produces the Controller's written permission authorising him to recover possession in execution of the decree, or proof that the institution or prosecution of the suit was permitted by the Controller under the Bengal House Rent Control Order, 1942. The executing Court is bound to decide, whether the section applies or not, and the decision, when made, is conclusive with all its consequences. so far as that Court is concerned. In my opinion, an order refusing to stay execution on the ground that section 15 of the East Bengal Premises Rent Control Ordinance, 1951, does not apply, comes under section 2 (2) read with section 47 of the Code, and is as such appealable.
But though the appeal is competent, there is no substance in it. The decree was not made on any of the grounds specified in section 10 (1) (c) of the Bengal House Rent Control Order, 1942. That order was not in operation at Daulatganj Bazar, either at the time of institution of the suit or at any time thereafter. It was not necessary for the landlord to make out any such special ground as mentioned in section 10 (1) (s) of the Order. The tenancy was termi nated by the notice to quit, and the decree was made on that ground. In the plaint there was a statement that the premises were required by the landlord for his personal use. But what is important is not what the pleadings were but the ground on which the decree was made. As the Bengal House Rent Control Order, 1942, was not in operation at the place, it was not necessary to go into the question whether the premises were required by the landlord for his personal use, and the decree was not based on any finding on hat issue.
The appeal is dismissed with costs.
The connected Rule is discharged.
K. B. A. M. S. Appeal dismissed.
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