JUDGMENT

Teunon, J. - In this case it is said that the Appellant and Respondent were partners in a certain business, and that the latter obtained a decree against the former for a sum of some Rs. 9,000 borrowed on a hathchitta. This was on the 28th February 1918. In execution of this decree, the Respondent, on the 10th September 1918, attached and seeks to put to sale his judgment-debtor's properties.

2. On the 26th May 1919, the Appellant before us brought a suit for accounts and for the sum that might thus be found due to him from the partnership business. Having instituted his suit, on the 11th of June, the Appellant next applied that pending the disposal of the said suit the execution of the decree against him should be stayed. On the 5th July the learned Subordinate Judge refused to stay execution, and it is against that order that the present appeal has been preferred.

3. On behalf of the Respondent it is contended inter alia that against this order no appeal lies. The question then is whether the order is one determining a question within the scope of sec. 47 of the Code of Civil Procedure, 1908, and therefore appealable as a decree.

4. In the CPC of 1882, the corresponding sec. (sec. 244) as originally enacted, provided that any question "relating to the execution, discharge or satisfaction" of a decree should be determined by the Court executing the decree. By reason of some conflict of decisions, by the Amending Act of 1888, to the words above cited were added the words "or relating to the stay of execution thereof." These words have disappeared from sec. 47 of the present Code.

5. On behalf of the Appellant it is contended that the words have been omitted as being unnecessary, and that the omission has made no alteration in the law. In support of this contention, reference has been made to certain observations to be found in a decision of this Court in Srinibash v. Kesho Proshad 14 C. L. J. 489 (1911) and to the omission from sec. 141 of the explanation added to sec. 647 of the Code of 1882 of the Amending Act VI of 1892.

6. But the omission now under consideration is not the omission of an explanation, but the omission of words deliberately inserted in the body of the law by an Amending Act. We are therefore constrained to the conclusion that a change in the law was intended, and that orders staying or refusing to stay execution are no longer to be considered as orders determining questions relating to the execution of the decree. In this view we are supported by the decision of this Court in Rama Prosad v. Anukul Chandra 20 C. L. J. 512 (1914).

7. We must therefore hold that in the present case no appeal lies.

8. It is then urged that we should deal with the matter under sec. 115 of the Code, but the learned Subordinate Judge has duly considered all the matters placed before him, and, in the exercise of his judicial discretion, if he has committed any error, which we do not say he has done, the error is not such as brings the case within the scope of sec. 115.

9. The appeal is dismissed with costs. Hearing fee is two gold mohurs.

10. Let the record be sent down without delay.

Beachcroft, J.

I agree that no appeal lies in this case, though I do so with some hesitation. For, prima facie, the words in sec. 47 "all questions relating to the execution of the decree" seem wide enough to cover a refusal to stay execution, which, after all, is tantamount to a decision that execution may proceed. But as the legislature has deliberately omitted from sec. 47 the words which it considered necessary in 1888 to insert, by an amendment of the Act to indicate that questions relating to the stay of execution were included in sec. 244 of the Code, I infer that the intention was to exclude those questions from the purview of sec. 47.