Order of appellate Court to be held as a decree and hence appealable.

By his order, dated 23rd September, 1953, Ramaswami, J., directed that the taking of an account under clause (1) of the decree in O.S. No.39 of 1948 on the file of the Sub-Court of Coimbatore will be stayed pending Appeal 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 1948. The main item of the decree in which stay of execution has been refused is one relating to the direction to defendants 1 to 4 to pay a sum of Rs.7,707 with interest at the rate of 6 percent. per annum from 17th February, 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 and 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 7th November, 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.7,707. As stated, the learned Judge stayed the further proceedings but refused to grant a relief to the defendants regarding the payment of Rs.7,707. 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 Tuljaram v. Alagappa1, 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 Justices of the Peace for Calcutta v. The Oriental Gas Company2, 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 Srimantu Raja Yarlagadda Durga Prasada Nayadu v. Srimantu Raja Yarlagadda Mallikarjuna Prasada Nayadu3 and Kodiba Sahib v. Syed Rahimatulla Sahib4, 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 Pethram, C.J. in Mohainr Prosad Singh v. Adhikari Kunwar5 though that was a case where under sections 608 of the old Code, corresponding to Order 41, rule 5, Civil Procedure Code a single Judge had directed a 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 Tuljaram v. Alagappa1 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. Ramana