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IN THE HIGH COURT OF MARAS
Malamal Vittil Krishnan Nair
Versus
Kavalappara Moopil Nair
Decided On : 27 July, 1914
APPEAL - Order 41, Rule 5 - Refusal to stay execution of decree pending appeal
Fact of the Case:
The District Judge refused to stay the execution of a decree passed by the Subordinate Judge against which an appeal is pending before himself.
Finding of the Court:
The court found that the order refusing to stay the execution of the decree was not appealable as it did not fall within the purview of Section 47, which applies to orders passed by the court executing the decree.
Issues: Preliminary objection on the appealability of the order under Order 41, Rule 5.
Ratio Decidendi: The court held that the order refusing to stay the execution of the decree did not fall within the purview of Section 47 and was therefore not appealable.
Final Decision: The court upheld the preliminary objection and dismissed the appeal with costs.
1. The District Judge passed an order under Order 41, Rule 5 refusing to stay the execution of a decree passed by the Subordinate Judge against which an appeal is pending before himself. This is an appeal against his order.
2. A preliminary objection is taken that no appeal lies. We think the objection is well founded. Mr. Ramachandra Aiyar contends that the order falls within the purview of Section 47 and is therefore appealable. But that section only applies to orders passed by the court executing the decree. In this case the District Court is not the Court executing the decree. See Ramachandra v. Balmukund (1904) I.L.R. 29 B. 71.
3. We therefore uphold the preliminary objection and dismiss the appeal with costs.
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