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Report No. 27

Section 47 and stay

Stay of execution.-The words "or to stay of execution thereof" which occurred in section 244 of the old Code, have been omitted in the present Code. Hence two divergent views have been taken as to whether such 'orders are appealable. One view is, that the words omitted may have been regarded as superfluous, because contention that the execution be stayed is as good as saying that the decree should not be executed and it thus amounts to a question "relating to the execution of the decree1. The other view is, that these words have been deliberately omitted and questions relating to stay of execution are no longer within this section and hence no appeal lies from orders determining such questions2.

A third view can be taken3, namely, that whether an order of stay will amount to a decree depends upon the question whether it conclusively determines the rights and liabilities of the parties in regard to the execution of the decree. The third view has been practically upheld by the Privy Counci14, which has held that an order deciding that a person is an "agriculturist" within the meaning of the Madras Agriculturist Debtors' Relief Act and staying execution of a decree on that ground, is appealable. This view is in consonance with the language of section 47 and should be preferred. No amendment in the law is called for.

1. Subramania v. Kumaravelu, ILR 39 Mad 541.

2. lanardhan v. Martand, ILR 45 Bonn 241.

3. ILR 1940 All 517: AIR 1940 All 326.

4. Adaikappa v. Chandrasekhar, AIR 1948 PC 12.

Appeal against orders under section 47

A recommendation has been made in the Fourteenth Report1, that an appeal should not be allowed against certain orders under section 47 where the question decided is one of payment of an amount not exceeding the Court's small cause powers. It is felt, that no amendment of this nature is called for in respect of decrees in regular suits, as a rigid provision would work hardship.

5. 14th Report, Vol. I.

Section 58

Under section 58(1)(a), the period of detention in execution of a decree is six months if the decree is for a sum exceeding fifty rupees. This figure of fifty rupees was put with reference to economic conditions which existed at that time. Conditions have changed since, and what was 50 rupees at that time is equivalent to at least 200 rupees now. The figures should, therefore, be changed. Hence the amendment.

Code of Civil Procedure, 1908 Back

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