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Judgment
Govinda Menon, J.—By his order dated 23-9-1953, Ramaswami J. directed that the taking of an account under Clause (1) of the decree in
C. S. No. 39 of 1948 on the file of the sub Court of Coimbatore will be stayed pending App. No. 1097 of 1952 on the file of the High Court and
that there would be no stay regarding any other portion of the decree In O. S. No. 39 of of 1948.
The main item of the decree in which stay of execution has been refused is one relating to the direction to defendants l to 4 to pay a sum of Rs.
7707 with interest at the rate of 6 per cent. per annum from 17-2-1947 till the date of realisation. It is alleged that this amount was due to the
plaintiff because he had to pay sales-tax to the Government on account of the fact that the A licence was in his name though the business was
conducted by the partnership consisting of plaintiff and defendants 1 to 4. During the period for which these amounts were due from the
partnership, defendants 1 to 4 were in management and it was their duty to pay that sum though the licence stood in the name of the plaintiff.
On account of the failure of the defendants to pay that amount, the plaintiff was compelled to discharge the liability due to the Government arid the
suit was, in addition to the prayer for taking of accounts, for payment of this amount from the defendants.
The Subordinate Judge, in addition to the direction to take accounts for a period subsequent to 7-11-1945, further ordered that defendants should
pay that sum to the plaintiff with interest thereon. There was a further direction that in taking the accounts, the sales-tax due by the plaintiff for that
period for his share be also taken into account. In the application by the defendants, the prayer was for a stay of the further proceedings relating to
the taking of accounts and for execution of the decree regarding the Rs. 7707.
As stated, the learned judge stayed the further proceedings but refused to grant a relief to the defendants regarding the payment of Rs. 7707. It is
against that portion of the order that the defendants have preferred the appeal and the question is whether that portion of the order refusing to stay
the execution of the decree is a ""Judgment"" or not within the meaning of Clause 15 of the Letters Patent.
We do not propose to advert to all the cases, cited before us, but it becomes necessary only to consider the observations contained in the
decisions subsequent to -- ""Tuljaramraw v. Alagappa Chettiar'', 35 Mad 1 (A) though there has been a body of case law prior to that taking a
view that such an order would not amount to a judgment within Clause 15 of the Letters Patent, despite the fact that in -- ''the Justice of the Peace
for Calcutta v. Oriental Gas Co.'', 8 Beng LR 433 (B), Sir Richard Couch C. J. expressed an opinion ''obiter'' that in cases where orders have
been made in execution they would come within the definition of the word ""judgment"" in Clause 15.
The cases reported in -- ''Durga Prasada Nayadu v. Malikarjuna Prasada Nayadu'', 24 Mad 358 (C> and -- ''Kodiba Sahib v. Rahimatulla
Sahib'', 3 Mad LT 307 (D) have taken the view that an order refusing stay of execution passed by a single Judge of the High Court would not
amount to a judgment under Clause 15.
To the same effect are the observations of Petheram C. J. in -- ''Mohabir Prosad Singh v. Adhikari Kunwar'', 21 Cal 473 (E), though that was a
case where Section 608 of the old Code, corresponding to Order 41, Rule 5, C. P. C., a single Judge had directed security for costs in execution
to be given and it was held that such an order was not a judgment.
The trend of decisions subsequent to -- ''35 Mad 1 (PB) (A)'' in this Court is consistently to the effect that an order of a single Judge refusing stay
of execution is a judgment though there is to be seen a very minor discordant note that where execution has been stayed, it may not amount to a
judgment. But there is one exception to that rule in the case reported in -- ''Vairavan Chettiar v. Ramanathan Chettiar'', 14 Mad LW 701 (F),
where Oldfield and Ramesam JJ. have held that the order of a single Judge sitting ia the Admission Court dismissing a petition for stay of execution
is not a judgment within the meaning of Clause 15 and no appeal lies therefrom to a Division Bench on the ground that the earlier decision in -- ''24
Mad 358 (C)'' which took a similar view has not been overruled by the ''obiter dictum'' in --''35 Mad 1 (PB) (A)''.
But, as will be shown presently, the large catena of case law subsequent to -- ''35 Mad 1 (A)'' is in favour of allowing an appeal against such an
order under Clause 15.
We have already stated that this Bench is bound to follow the decision in -- ''35 Mad 1 (A)'' and as such it is now necessary to see how far even
statements which may be ''obiter'' in that case have been consistently not departed from in later cases. At p. 8 of -- ''35 Mad 1 (PB) (A)'' Sir
Arnold White C. J. says thus :
I should be prepared to hold that an appeal lay from an order refusing a stay of execution (the application for stay being an ancillary proceeding)
though a contrary view was taken in --''24 Mad 358 (C)''.
Prom this observation it is clear that the Pull Bench has not approved of the dictum in -- ''24 Mad 358 (C)'', and the view taken in -- ''14 Mad
LW 701 (P)'' that the so-called ''obiter dictum'' has not overruled -- ''24 Mad 358 (C)'' does not appeal to us. The decision in -- ''21 Cal 473 (E)''
has been followed in -- ''24 Mad 358 (C) which, as we have shown, has not been approved in -- ''35 Mad 1 (A)'' and therefore so far as this
Court is concerned, -- ''21 Cal 473 (E)'' cannot be deemed to be any authority.
The decision in -- ''3 Mad LT 807 (D)'' simply follows -- ''24 Mad 358 (0)'' and as such is open to the same criticism. Even Krishnaswami Ayyar
J. at pp. 19 and 20 of -- ''35 Mad 1 (A)'' does not approve of -- ''24 Mad 358 (C)'' and -- ''21 Gal 473 (E)'', but would prefer as sounder view
the expression of opinion in -- ''Mt. Brijcoomaree v. Ramrick Pass'', 5 Cal WN 781 (O), though the latter decision related to an order made by a
single Judge refusing to stay the issue of probate and the discharge of a receiver appointed in a probate action.
Discussing the Madras cases which have taken the view tnat an appeal lies under such circum-stances in a chronological order we have next to
refer to -- ''Srinivasa lyengar v. Ramaswami Chettiar'', AIR 1916 Mad 1220 (H) where, though the question that arose before the Full Bench was
whether an order of a single Judge rejecting a petition to send for the records and to revise the judgment of a lower Court exercising small cause
jurisdiction is a Judgment within the meaning of Clause 15 of the Letters Patent as it then stood and was therefore appealable, the Court, in
deciding the point followed the observations in -- ''35 Mad 1 (A)''; and Seshagiri Aiyar J. who delivered the judgment of the Full Bench stated that
-- ''35 Mad 1 (A)'' was binding on them.
When the question arose subsequently as to whether an order of a single Judge pending disposal of a second appeal on an application for interim
injunction amounts to a Judgment under Clause 15, it was held by Spencer and Devadoss JJ. in --''Venkata Chinnayamma Rao v. Subbamma
Rao'', Am 1935 Mad 586 (J) that the Bench should be guided by the observations of White C. J. in-- ''35 Mad 1 (A)'' & as such an order would
amount to a judgment. The learned Judges distinguished -- ''14 Mad LW 701 (P)'' and -- ''24 Mad 358 (C)'', by stating that the orders in those
cases were passed in execution and did not directly affect the question before them, nor did they diminish the authority of -- ''35 Mad 1 (PB) (A)''.
How far the distinction is justifiable need not concern us at this stage for we are unable to find any substantial difference between an application for
an order of interim injunction pending a second appeal and one for stay of execution. In any event -- ''35 Mad 1 (A)'' has been accepted as
binding authority.
An important pronouncement where the point is practically ''ad idem'' has been made by Krishnan and Waller JJ. in -- A Sonachalam Pillai and
Others Vs. Kumaravelu Chettiar and Others, , where it has been categorically laid down that an order of a single Judge of the High court refusing
stay of execution of a decree of a mufassal Court pending an appeal to the High Court is a judgment within the meaning of Clause 15 of the Letters
Patent.
For that dictum the authority given is -- ''35 Mad 1 (PB) (A)''. The learned Judges referred to -- ''Desouza v. Coles'', 3 Mad HCR 384 (K) and --
''8 Beng LR 433 (B)'' before discussing the observations of the Full Bench in -- ''35 Mad 1 (PB) (A)''. After extracting a passage from the
Judgment of the Full Bench at p. 7 of the report, where Sir Arnold White C. J. lays down the essentials of a judgment and nothing what
Krishnaswami Alyar J. has also held in that case, they have stated that the observation at p. 8 that an appeal lay from an order refusing stay of
execution, though in the nature of an ''obiter dictum'', was binding on them.
As almost all the cases which discussed this question prior to that date have been amply considered in-- A Sonachalam Pillai and Others Vs.
Kumaravelu Chettiar and Others, '' and as we are in agreement with the discussion and reasoning therein, it is unnecessary for us to dilate at any
length upon the reasoning given by the learned Judges. They also referred to -- ''Ruldu Singh v. Sanwal Singh'', AIR 1922 Lah 380 (L) where the
learned Judges of the Lahore High Court elaborately discussed all the cases on the point and followed -- ''35 Mad 1 (A)''. We agree with the
learned Judges who decided -- A Sonachalam Pillai and Others Vs. Kumaravelu Chettiar and Others, '' in their view that -- '' 24 Mad 35 (C)'' and
-- ''14 Mad LW 701 (P)'' have been wrongly decided and are no longer authority. No decision has been brought to our notice in our Court which
has so far either expressly or by necessary implication, dissented from the view taken in-- A Sonachalam Pillai and Others Vs. Kumaravelu
Chettiar and Others, '' which has stood the test of time for more than 30 years and on the principle of ''stare decisis'' at least we should follow that
decision.
Three years later, a Bench consisting of Wallace and Madhavan Nair JJ. in -- Peria Koil Kelvi Appan Govinda Ramanuja Pedda
Jeeyangarlavaru Vs. Kadambi Dharmapuri Tiruvengada Krishnamacharlu and Others, was confronted with the argument that the series of
decisions of this Court up till then had been overruled by the observations of the Privy Council in -- AIR 1925 155 (Privy Council) but the learned
Judges held that nothing like that has happened. The learned Judges expressly followed the observations in -- '' 35 Mad 1 (A)'' and the decision in
-- A Sonachalam Pillai and Others Vs. Kumaravelu Chettiar and Others, '' and have also Stated that -- '' 24 Mad 358 (C)'' and -- ''14 Mad LW
701 (F)'' are no longer good law. At p. 402 of the report Madhavan Nair J. observes thus: ""So far as I can speak from experience, I may state
that the practice in this Court ever since -- ''35 Mad 1 (A)'' has always been to allow appeals against orders like the one before us."" The facts of
the case before the learned Judges showed that it related to an order staying execution of a decree of a lower Court, by suspending an injunction,
pending an appeal to the High Court. We are in agreement with the observations of the learned Judges. Wallace-J. at pp. 399-400 of the report
refers to the large body of case law subsequent to -- ''35 Mad 1 (A)'' which took the view that orders by which either stay of execution has been
refused or allowed are appealable under Clause 15 of the Letters Patent and most of those cases have already been considered by us. One
significant fact, as pointed out by the learned Judge, is that despite the repeated rulings of various High Courts regarding the definition of the word
judgment"" even when the Letters Patent was amended in 1919, no attempt was made to clarify what that word meant and it is all the more
interesting to note that subsequent to -- Peria Koil Kelvi Appan Govinda Ramanuja Pedda Jeeyangarlavaru Vs. Kadambi Dharmapuri
Tiruvengada Krishnamacharlu and Others, '' when the Letters Patent was amended in 1929, there was no idea of making any clear exposition of
the meaning of the word ""judgment"" or under what circumstances an appeal would lie from the decision of a single Judge.
On the whole the consensus of opinion in our High Court up to -- Peria Koil Kelvi Appan Govinda Ramanuja Pedda Jeeyangarlavaru Vs.
Kadambi Dharmapuri Tiruvengada Krishnamacharlu and Others, '' has been to consider that an order refusing stay of execution, or allowing stay''
of execution, by a single Judge, pending an appeal, is a Judgment within the meaning of the term. All that we need say is that even after the lapse of
more than 27 years since that decision was rendered, there Is no divergent path followed in this Court, to compel us to take a different view of the
meaning of the word ""judgment"".
The above decision was followed without discussion by Ramesam and Madhavan Nair JJ. in -- Pethaperumal Chettiar Vs. Chidambaram Chettiar,
by holding that an order of a single Judge of the High Court issuing an injunction and thereby staying execution proceedings of a decree obtained
by one of the parties is a judgment.
The decision in -- ''35 Mad 1 (A)'' has been consistently and continuously followed in this Court and even as recently as March 1953,
Rajamannar C. J. and Venkatarama Aiyar J. have delivered a judgment to that effect in -- Simrathmull and Another Vs. Jugraj and Another, ,
though on the facts of that case they were of opinion that no appeal lay. The only discordant note that has been struck against the view of
appealability where execution of a decree has been stayed is by Wallace and Thiruvenkatachariar JJ. in -- Nageswara Ayyar Vs. M.L.M.
Ramanathan Chettiar, , where they make a distinction between cases in which a stay has been refused and those in which a stay has been allowed.
With due respect to the learned Judges we are unable to see the point of distinction. It has to be remembered that Wallace J. himself was a party
to --''AIR 1927 Mad 398 (M)'' where on the facts the Bench held that an appeal lay against an order staying execution. The more respectable
(reasonable?) view seems to be that expressed in -- Peria Koil Kelvi Appan Govinda Ramanuja Pedda Jeeyangarlavaru Vs. Kadambi Dharmapuri
Tiruvengada Krishnamacharlu and Others, '' and not what is expressed in Nageswara Ayyar Vs. M.L.M. Ramanathan Chettiar, .
The second line of argument of Mr. S. T. Srinivasagopalachari to bring the order appealed against within the definition of the word ""judgement
is that such a decision amounts to a decree within the meaning of Section 2(2), C. P. C., and where a decree has been passed by a single Judge,
an appeal lies. The expression of opinion of Tek Chand and Johnstone JJ. in--''Mt. Durga Devi v. Hans Raj'', AIR 1930 Lah 187 (R)'' to the effect
that an order staying execution of a decree till the decision of the appeal clearly falls u/s 2(2) read with Section 47, C. P. C., and is appealable is
cited before us to show that in the present case the order refusing stay of execution must also amount to a decree.
In the Code of 1882, in Section 244 the words ""or to the stay of execution thereof"" were present, which would make such an order appealable.
What has to be considered is the effect of the omission of those words in Section 47 of the Code of 1908. The generally accepted view is that
when an executing Court stays, or refuses to stay, the execution of the decree, such an order, if it is final, would come within the definition of the
term execution, discharge or satisfaction of the decree in Section 47; but where an appellate Court under Order 41, Rule 5, C. P. C.. either stays
or refuses to stay, that would not come within the definition of ""decree"" in Section 2(2) and as such would not be appealable.
''Krishnan Nair v. Kavalappara Moopil Naif'', AIR 1915 Mad 41 (1) (S) is an authority for the proposition that orders under Order 41, R, 5
would not be decrees though that view has been somewhat dissented from recently by Horwill J. in -- ''Veera Raghavayya v. Koti Rattamma'',
AIR 1948 Mad 524 (T). , Again in -- M. Desikachariar Vs. Ramachandra Reddiar, the Full Bench doubted the correctness of the view taken by
Rorwill J, in the case cited above. On the facts, the conclusion of Horwill J., might be justified because what happened in the case decided by
Horwill J. was that a Court-which passed the decree was requested to stay the execution under Order 41, Rule 6 (2), C. P. C., pending an appeal
from the decree itself. Here therefore it is the executing Court that functioned and not the appellate Court that restrained, or refused to restrain, the
hand of the executing Court. Viewed in that light, nothing can be said against the decision of Horwill J.
If on the other hand, the order has been made by the appellate Court under Order 41, Rule 5, we are of opinion that the principles enunciated by
Horwill J. cannot be extended to such circumstances. At p. 58 of M. Desikachariar Vs. Ramachandra Reddiar, Subba Rao J. in delivering the
opinion of the Full Bench doubted the correctness of -- '' AIR 1948 Mad 524 (T)''. But the learned Judge has not referred to the fact that the
application for stay was made to the executing Court pending an appeal against the decree and on that ground the decision of Horwill J. can be
supported. We are in agreement with the learned Judge in thinking that if an application under Order 41, Rule 5, C. P. C., is made to an appellate
Court then it would not amount to a decree. The correct view, as we have already stated, seems to be what is laid down in -- ''AIR 1915 Mad 41
(S)'' and not -- ''AIR 1930 Lah 187 (R)'',
The Calcutta decisions, viz., -- Shamsuddin Ahmed Vs. Charu Chandra Biswas and Others, & -- Lea Badin Vs. Upendra Mohan Roy Choudhury
and Others, which Mr. Srinivasagopalachari brought to our notice do not improve the situation any further, as they are not concerned with staying,
or refusing to stay, execution of decrees.
That an order under Order 41, Rule 5, C. P. C., staying or refusing to stay execution of a decree is not a ""decree"" within the meaning of &. 2
(2), C. P. C., has been laid down by the Nagpur High Court in -- AIR 1943 282 (Nagpur) and this view being in consonance with that we think
right, we are in agreement with it. We are therefore of opinion that where an appellate Court purports to act under Order 41, Rule 5 and refuses to
stay, or stays, the execution of a decree, such an order could not be a decree within Section 2(2) of the C. P. C. and the second argument of Mr.
Srinivasagopalachari therefore fails, though we are in agreement with him that it would amount to a Judgment under Clause 15, Letters Patent, as
interpreted in --''35 Mad 1 (A)''.
On the merits it seems to us that Rama-swami J.''s order cannot be sustained ''in toto''. The learned judge has stayed that portion of the decree
by which accounts were directed to be taken. But at the same time he ordered the appellants to pay the sum of Rs. 7707 with interest. Either the
entire decree should have been stayed or there should have been no stay whatever, is what we feel in the circumstances,
In any event the appellants need not be saddled with the responsibility to pay the entire sum now. We therefore direct that Instead of paying the
whole amount of Rs. 7707 with Interest thereon, the appellants do pay the respondent half that amount with interest at the rate of six per cent. per
annum from 17-2-1947 on or before 31-7-1954. The judgment of the learned Judge is modified accordingly. There will be no order as to costs in
this appeal.