M. Desikachariar. v. Ramachandra Reddiar. — 1950 DIGILAW 237 (MAD)

This is a revision against the order of the lower Court dismissing the application under section 20 of the Madras Agriculturists Relief Act (hereinafter called the Act) for stay of the execution of the decree in O.S.No.533 of 1933. The learned counsel for the respondent raised a preliminary objection that a “revision” is not maintainable as an appeal lies against the order of the lower Court. To appreciate his contention, some of the relevant facts may be stated. The respondent, Ramachandra Reddiar. filed O.S.No.553 of 1933 on the file of the District Munsif of Arni on a promissory note executed by the petitioners father. To that suit the petitioner’s father was the first defendant, the petitioner was the fourth defendant and his other brothers were impleaded as defendants 2, 3 and 5. The respondent obtained a decree on 3rd August, 1934. After the passing of the Act, the fifth defendant, one of the sons, filed Application No.1211 of 1943 and obtained stay of execution of 7th September, 1943. He also filed an application I.A.No.1605 of 1943 under section 19 of the Act and on 21st March, 1944, the decree was scaled down under the Act. After some infructuous attempts at execution, the respondent ultimately filed F.P.No.728 of 1945 and attached the petitioner’s property and is now bringing them to sale. The petitioner alleging that he was separated from the other members of the family under a registered deed of partition of the year 1931, filed E.A.No.176 of 1946 for stay under section 20 of the Act to enable him to file an application for scaling down the decree debt. The learned District Munsif dismissed the present application mainly on the ground that successive applications by different judgment-debtors are not maintainable. He held, as the petitioner was a joint debtor and as the debt has already been scaled down by the Court on an application filed by one of the joint debtors, no further scaling down was permissible under the Act. The fourth defendant has preferred the present revision against that order. Learned counsel for the respondent contended that an appeal lies against that order under section 20 of the Act and therefore the revision is not maintainable. In Swaminatha Odayar v. Srinivasa Aiyar1,. Burn and Stodart, JJ., held that an order passed refusing stay of execution under section 20 of the Act is not appealable. Learned counsel for the respondent contended that an appeal lies against that order under section 20 of the Act and therefore the revision is not maintainable. In Swaminatha Odayar v. Srinivasa Aiyar1,. Burn and Stodart, JJ., held that an order passed refusing stay of execution under section 20 of the Act is not appealable. The ratio decidendi for the judgment is found in the following passages. At page 497 the learned Judges observed: “The question raised under section 20 is, we think, not a question between the parties to the decree at all. As we have already indicated, section 19 of the Madras Act IV of 1938 provides for the application of the judgment-debtor for the scaling down of the decree and section 20 we consider-to be a provision merely ancillary to section 19.” Later on they add: “A reading of section 20 by itself seems to us to indicate clearly that the only question which arises under that section is a question between the executing Court and the applicant and not a question between the parties to the decree.” It is contended that this judgment is no longer good law in view of the later Privy Council decisions in Adikappa Chettiar v. Chandrasekhara Thevar2. It is necessary to state briefly the facts of that case to appreciate this contention. On 15th September, 1925, a final decree was passed in a mortgage suit. The decree-holder took out execution petition No.79 of 1933 to enforce the final decree and certain of the mortgaged properties were advertised to sale. But before the sale had been effected, the Act was passed in March 1938. On 8th July, 1938.. the judgment-debor filed E.A.No.237 of 1938 in E.P.No.79 of 1933 under sections 20, 19, and 8 of the Act and sections 47 and 151, Civil Procedure Code. On 3rd August, 1938, the judgment-debtor has made an independent application, I.A.No.361 of 1938, for amending the decree in accordance with the provisions of the Act. E.A. No.237 of 1938 was dismissed on the ground that the judgment-debtor was not an agriculturist. I.A.No.361 of 1938 was also dismissed on the same ground. Appeals were filed against both the orders and this Court held that no appeal lay against the order in I.A.No.361 of 1938 but permitted the appellant to convert his appeal into a civil revision petition and allowed the revision. I.A.No.361 of 1938 was also dismissed on the same ground. Appeals were filed against both the orders and this Court held that no appeal lay against the order in I.A.No.361 of 1938 but permitted the appellant to convert his appeal into a civil revision petition and allowed the revision. This Court allowed the other appeal and set aside the lower Court’s order and remanded it for fresh disposal.. The Judicial Committee held that the order in I.A.No.361 of 1938 was a decree and an appeal lay to the High Court and therefore the revision should not have been entertained. As regards the appeal, against the order in E.A. No. 237 of 1938, their Lordships made the following observation: “The appeal against the order of the 25th July, 1938, was rightly entertained. That order related to the execution, discharge or satisfaction of a decree within the meaning of section 47 of the Code and an appeal therefore lay under section 96.” If these observations meant that every order under section 20 of the Act comes under section 47, Civil: Procedure Code and is therefore appealable under section 96, this revision is liable to be dismissed.. But the learned counsel for the petitioner contended that the Judicial Committee was dealing only with the order in E.A.No.237 of 1938 which was certainly one covered by section 47, Civil Procedure Code. He pointed out that the application was under sections 20, 19 and 8 of the Act and sections 47 and 151, Civil Procedure Code and in that application, the Court held that the judgment-debtor was not an agriculturist and therefore dismissed it. His contention was that the said order was passed between the parties in execution conclusively determining their rights within the meaning of the: definition of a “decree” in section 2(2), Civil Procedure Code. He argued that that judgment has no bearing to the present case where the order is simply one refusing to stay the execution of the decree-In the present case also the application under section 20 was dismissed on the ground that the decree was not liable to be scaled down at the instance of the petitioner. It certainly negatives the right of the petitioner to have the decree scaled down and that order was also passed in execution proceedings as the decree was being executed and the properties were brought to sale. It certainly negatives the right of the petitioner to have the decree scaled down and that order was also passed in execution proceedings as the decree was being executed and the properties were brought to sale. Though the present application is not a comprehensive one including the prayer for scaling down, applying the principle laid down by the Judicial Committee, I am inclined to hold that an appeal lies against the lower Court’s order. But in view of the aforesaid Bench decision taking a different view, it is desirable to have an authoritative ruling on this point. Further it is necessary to elucidate the scope of the Privy Council judgment in regard to the question of appealability against orders under section 20 of the Act. It has also been argued that orders in applications for stay of execution are not appealable in view of the fact that the words “or to the stay of execution thereof” which occurred in section 244 of the Civil Procedure Code of 1882 were deliberately omitted in section 47 of the present Code. There was a conflict of decisions on this question between the various High Courts though our High Court took the view that the words omitted might have been regarded as superfluous, for a plea that the execution of the decree may be stayed is equivalent to the plea that the decree should not be executed and was thus a question “relating to the execution” of the decree (see Subramania Pillai v. Kumaravelu Ambalam1 and Chidambaram Chettiar v. Krishna Vathiar2). For the reasons mentioned above and to avoid a conflict of decisions on a question of procedure which must necessarily arise very frequently, I am of the view that this revision must be posted before a Bench of two Judges. Pursuant to the above Order this petition coming on before Subba Rao and Panchapakesa Aiyar, JJ., on 9th January, 1950, the Court made the following ORDER OF REFERENCE TO A FULL BENCH. This is a revision against the order of the District Munsiff, Arni, dated 17th May, 1945, in E.A.No.176 of 1946, in E.P.No.723 of 1945, in O.S.No.533 of 1933, dismissing the petitioner’s application for stay of execution under section 20 of the Madras Agriculturists Relief Act. This is a revision against the order of the District Munsiff, Arni, dated 17th May, 1945, in E.A.No.176 of 1946, in E.P.No.723 of 1945, in O.S.No.533 of 1933, dismissing the petitioner’s application for stay of execution under section 20 of the Madras Agriculturists Relief Act. This petition has been referred by Subba Rao, J., to a Bench of two Judges, in view of the conflict of decisions as to whether an appeal will lie in such cases precluding the maintainability of a revision petition, as the learned counsel for the respondent raised a preliminary objection that only an appeal would lie and not a revision. The learned District Munsiff had dismissed the application mainly on the ground that successive applications by different judgment-debtors were not maintainable and that, as the 5th defendant had filed an application for scaling down and the decree had been scaled down already, another application for scaling down by the petitioner the fourth defendant and a joint judgment-debtor, would not lie. The learned counsel for the respondent relied on the ruling in Swaminatha Odayar v. Srinivasa Aiyar3 wherein Burn and Stodart, JJ., held that an order refusing stay of execution under section 20 of the Madras Agriculturists Relief Act is not appealable. The ratio decidendi for the decision was that the question raised under section 20 was not a question between the parties to the decrees at all and was merely a question between the executing court and the applicant, section 20 being merely ancillary to section 19. The learned counsel for the petitioner relied not merely on various earlier and later decisions holding that the question under section 20 was a question relating to the execution of the decree falling within the section 47, Civil Procedure Code, but also contended that the Privy Council decision in Adaikappa Chettiar v. Chandrasekhara Thevar 4 ,had overruled by implication, the decision in Swaminatha Odayar v. Srinivasa Iyer3.We have looked into the Privy Council decision relied on, and are of opinion that it has not overruled the decision in Swaminatha Odayar v. Srinivasa Aiyar3,having not considered this question separately or given a decision on it at all. It merely held that where a petition had been filed under sections 20, 19 and 8 of the Madras Agriculturists Relief Act, in a case where the Court passing the decree and the Court executing it was the same, an appeal would lie under section 47, Civil Procedure Code if an execution petition were pending, or under section 96, Civil Procedure Code, if an execution petition were not pending, and that in either case, a revision petition would not lie. It held that, in the circumstances of that case, the separate application under section 20 appeared to be redundant It did not discuss whether an appeal would lie when an application was filed merely under section 20 and where it was not redundant was dismissed. So, it merely overruled the Full Bench ruling in Nagappa Chettiar v. Annapoorni Achi alias Karuppayi Achi5,which had held that orders under section 19 were not appealable as the right of appeal had not been conferred by the Madras Agriculturists Relief Act holding that a general right of appeal under the Civil Procedure Code (section 42 or section 96) would do. Then the question is whether we should follow the Bench ruling in Swaminatha Odayar v. Srinivasa Aiyar3, as it has held the field for more than ten years, in the interests of uniformity of decision as urged by the learned counsel for the petitioner, and hold that an appeal would not lie in this case and that a revision petition would lie. But we feel grave doubts about the correctness of the decision in that case, in view of a long line of cases, before and after, taking the view that the question in an application under section 20 is a question relating to the execution, discharge or satisfaction of a decree, under section 47, Civil Procedure Code, and that the correctness of that decision should, therefore, be referred to a Full Bench as the question is an important one arising for decision often, and therefore deserving to be settled authoritatively. In Chidambaram Chettiar v. Krishna Vathiar2, a full Bench decision of this Court in 1916 about the construction of an analogous provision, and in Subramania Pillai v. Kumaravelu Ambalam1, Venkatapadu v. Ratnamurthi6, and Sundaresan v. Venkataiah7, this Court has held that the question of the dismissal of a stay application like the one here, will fall under section 47, Civil Procedure Code and that an appeal will lie. In Sundaresan v. Venkalesiah7, which is a decision of 1948, Horwill, J., discusser! the case-law relating to the question of the dismissal of an application for stay like this before holding that the question would fall under section 47, Civil Procedure Code and that an appeal would lie against an order refusing stay of execution in a petition under Act XV of 1946, a very similar order to the one here So, the decision in Swaminatha Odayar v. Srinivasa Aiyar3, has not been followed uniformly earlier and Hater decisions having taken a contrary view. Hence it is necessary to refer the question to a Full Bench in order to set the matter at rest by getting an authoritative ruling. The question referred is whether an order under section 20 of the Madras Agriculturists Relief Act is appealable under section 47, Civil Procedure Code or whether only a revision petition will lie. We accordingly place the matter before the Chief Justice for constituting a Full Bench for considering and deciding this question. Pursuant to the above Order of Reference this petition coming on for hearing the Court expressed the following. OPINION: Subba Rao, J.-The question referred to the Full Bench is whether an order under section 20 of the Madras Agriculturists Relief Act (IV of 1938) is appealable. Pursuant to the above Order of Reference this petition coming on for hearing the Court expressed the following. OPINION: Subba Rao, J.-The question referred to the Full Bench is whether an order under section 20 of the Madras Agriculturists Relief Act (IV of 1938) is appealable. Section 20 of the Act reads as follows: “Every Court executing a decree passed against a person entitled to the benefits of this Act, shall, on application, stay the proceedings until the Court which passed the decree has passed orders on an application made or to be made under section 19: Provided that where within 60 days after the application for stay has been granted the judgment-debtor does not apply to the Court which passed the decree for relief under section 19 or where an application has been so made and is rejected, the decree shall be executed as it stands, notwithstanding anything contained in this Act to the contrary.” Under this section, every person entitled to the benefits of the Act may apply for the reliefs mentioned therein. It is, therefore, obligatory on the Court to decide whether the applicant is an agriculturist and is otherwise entitled to the relief under Madras Act IV of 1938. If he is entitled to the said relief stay will be granted, otherwise the application will be dismissed. If stay be granted, the decree-holder will be prevented from executing the decree till the expiry of 60 days from the date of the order if no application under section 19 is filed and if filed till that application is disposed of in his favour. If the application under section 19 goes against him, the stay granted by the Court in effect becomes absolute and the only remedy of the decree-holder is to execute the amended decree. If the application under section 20 is dismissed, the properties of the judgment-debtor may be sold to his prejudice So, under this section apart from the fact that the Court decides the right of the applicant to relief under the Act, the order passed therein will certainly affect the rights of the parties under the decree. Whether an appeal lies against such an order will have to be decided on a combined reading of the provisions of section 47, section 2, sub-section (2) and section 96 of the Civil Procedure Code. Whether an appeal lies against such an order will have to be decided on a combined reading of the provisions of section 47, section 2, sub-section (2) and section 96 of the Civil Procedure Code. Sub-section (2) of section 2 of the Civil Procedure Code runs thus:- “‘Decree’ means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint the determination of any question within section 47 or section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.” The relevant provisions of section 47 of the Code read: “47 (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Section 96 says: ”96. (1). . . . . . appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.“ It is apparent from the aforesaid provisions that an appeal from an order would lie only if the following three conditions are complied with: ”(1) the order must relate to execution, discharge or satisfaction of the decree between the parties to the suit; (2) it shall conclusively determine the rights of the parties with regard to all or any of the matters in controversy; (3) such conclusive determination of the rights is with reference to the Court in which such rights are decided." No doubt, the definition of "decree" in section 2 lends support to an argument that if an order is covered by section 47 of the Civil Procedure Code, it will be deemed to be a decree for the purpose of an appeal. But if this construction be accepted it will make every order made in execution proceedings, whether interlocutory or otherwise, appealable, and the result would be that the execution proceedings would be arrested at every step. But if this construction be accepted it will make every order made in execution proceedings, whether interlocutory or otherwise, appealable, and the result would be that the execution proceedings would be arrested at every step. An order refusing an adjournment, an order issuing or refusing to issue notice or an order granting or refusing process for the examination of witnesses and many other such orders would be subjected to a right of appeal. I cannot accept such a construction unless the words used in the section are clear and unambiguous. When a formal expression of an adjudication in a suit would be a decree only if it conclusively determines the rights of the parties, I do not see any principle by which an order under section 47 of the Civil Procedure Code should be a decree without complying with that necessary condition. Orders under section 47, Civil Procedure Code, have been brought in under the extended meaning of the decree as they otherwise would not be covered by the main definition as the said orders are not made in a suit. But to attain the status of a decree such orders must possess the characteristics of a decree as defined in the main part of the section. If the meaning of the provisions is, as I have indicated the order under section 20 of the Madras Agriculturists Relief Act certainly complies with the characteristics of a decree. As it is an order relating to the execution of a decree between the parties to the suit, it is covered by section 47 of the Code. As the right of the applicant for an appropriate relief under the Madras Agriculturists Relief Act in respect of the reliefs granted under the decree is in issue and as the order affects the rights of the parties in different ways under different contingencies, it will be an order determining the rights of the parties. It would also be a conclusive determination of the rights of the parties with regard to the Court expressing it as the said question cannot be raised again in the executing; Court till the final adjudication is obtained in the application filed in the suit. Whether the application is dismissed or allowed, so far as the executing Court is. concerned, the order is final. Whether the application is dismissed or allowed, so far as the executing Court is. concerned, the order is final. The learned counsel for the appellants contended that an order under section 20 of the Madras Agriculturists Relief Act is summary in character and ancillary to the execution and therefore does not embody any conclusive determination of the rights of the parties, whereas the learned counsel for the respondent pressed on us the extreme contention that any order which comes in under section 47 of the Civil Procedure Code is automatically appealable as it would be a decree within the meaning of sub-section (2) of section 2, Civil Procedure Code. His alternative contention was that an order under section 20 of the Madras Agriculturists Relief Act conclusively determines the rights of the parties so far as the executing Court is concerned and therefore is a decree, and appealable. The judgment of Horwill, J., reported in Veeraraghavayya v. Rattamma1, certainly supports the learned counsel in his first contention. In that case, the Court dismissed the application filed for stay of execution of the decree pending an appeal. After setting out the provisions of section 47, Civil Procedure Code, the learned Judge observes: "So if any question arising in execution is determined under section 47, Civil Procedure Code it automatically becomes a decree by virtue of the wording of section 2(1) of the Code, whether the order conclusively determines the rights of the parties or not; so that it would seem to follow that if the decision in Subramania Pillai v. Kumaravelu Ambalam2, was properly decided, then it would directly follow that an order on an application for stay would be a decree within the meaning of section 2(2) of the Civil Procedure Code. I cannot agree with the construction put upon the provisions of section 2(2) of the Civil Procedure Code, by the learned Judge. As I have already pointed out this construction would lead to startling results. Further, so far as I am aware, the section has never been understood in the manner expressed by the learned Judge. That an order on a stay petition relates to execution of a decree admits of no doubt. As I have already pointed out this construction would lead to startling results. Further, so far as I am aware, the section has never been understood in the manner expressed by the learned Judge. That an order on a stay petition relates to execution of a decree admits of no doubt. Indeed, in section 244 of the Code of 1882, which corresponds to the present section 47, Civil Procedure Code, the word “as to the stay of execution thereof” occur after the words “execution, discharge or satisfaction of the decree” but those words have been omitted in section 47 of Act V of 1908. But notwithstanding such an omission, Courts have held that the words were omitted as superfluous, for a plea that execution of a decree may be stayed is equivalent to the plea that the decree should not be executed, and, therefore, is a question relating to the execution of the decree. In Subramania Pillai v. Kumaravelu Ambalam1, an application was made to the executing Court by one of the judgment-debtors to enter up satisfaction of the decree as against him on the ground that there was an agreement to that effect entered into between himself and the decree-holder prior to the passing of the decree. When an argument was built upon the omission of the words “or to the stay of execution thereof” in section 47, Civil Procedure Code, the learned Judges remarked: “We are not satisfied that the omission of these words in section 47 of the present Code is any indication that matters relating to stay of execution are not within the section. The words omitted may have been regarded as superfluous.” When a similar argument was advanced in Chidambaram Chettiar v. Krishna Vathiar2, Abdur Rahim, O.C.J., observed at page 237: “No doubt section 244 of the Code of 1882 specifically mentions ‘stay of execution ‘as a question to be decided by the Court executing the decree but the scheme of the corresponding section 47 of the present Code is not to specify particular questions at all but to include all questions relating to the execution, discharge or satisfaction of a decree as being within its scope.” No doubt, Phillips, J., who differed, struck a different note. In Jami Venkatappadu v. Kannepalli Ramamurti3, the learned Judges held that all petitions under sections 19 and 20 of the Madras Agriculturists Relief Act (IV of 1938) must be deemed to be petitions which raised questions relating to the execution, discharge or satisfaction of the decree and therefore come within matters covered by section 47 of the Civil Procedure Code, though the view of the learned Judges that questions under section 19 related to execution has been dissented from and even overruled in later Full Bench decision, their view in regard to the scope of a petition under section 20 cannot be questioned in view of the observations in Subramania Pillai v. Kumaravelu Ambalam1 and Chidambaram Chettiar v. Krishna Vathiar2. But though those three decisions support the contention that an application for stay is an application relating to execution within the meaning of section 47, Civil Procedure Code, the learned Judges deciding those cases were neither called upon to decide, nor did they decide, that any order passed therein automatically becomes appealable. The leading decision defining an order in execution vis-a-vis the definition of decree is reported in Jogodishwary Debee v. Kailash Chandra Lahiri4, the learned Judges say: “It is not every order made in execution of a decree that comes within section 244. If that were so, every interlocutory order in an execution proceeding, such as an order granting or refusing process for the examination of witnesses, would be appealable; and far greater latitude would be given of appealing against orders in such proceedings than is allowed as against orders made in suits before decree-a thing which could hardly have been intended. An order in execution proceedings can come under section 244 only when it determines some question relating to the rights and liabilities of parties with reference to the relief granted by the decree; not when, as in this case, it determines merely an incidental question as to whether the proceedings are to be conducted in a certain way.” I accept the said statement as the correct exposition of law relating to the appealability of orders under section 47, Civil Procedure Code. In Srinivasa Prasad, Singh v. Kesho Prasad Singh5,Mookerjee, J., states his opinion to the same effect but in different words thus: " It is not every interlocutory order passed in the course of execution proceedings even though it may decide any point of law which may arise incidental to the decree that can come under section 47 but it must he an order which must determine the rights of the parties in controversy in the execution proceedings." This statement of law is accepted by Thiruvenkatachariar, J., in Somu v. Chelliah1. The question there was whether an order of the District Munsiff directing the arrest of the appellant was a decree within the meaning of section 2(2), Civil Procedure Code. The learned Judge held that it was not a decree. He observed: " The order passed is no doubt one which falls within the terms of section 47 as an order relating to the execution of the decree. But it is not an order relating to the execution of the decree which amounts to a decree as denned in section 2(2), Civil Procedure Code. The order to have the force of a decree must not only relate to a question which falls within section 47, but it must also determine the rights of the parties with regard to any matter in controversy between them as regards the decree. There are many orders passed under section 47, Which though they relate to execution are mere interlocutory orders which do not determine any rights but regulate the procedure as regards the steps which may be taken in aid of the execution of the decree." This view is also accepted by the Allahabad High Court in Beharilal v. Badri Prasad2. The order in that case was that the decree-holder must first proceed to realise the balance of the decretal money from defendants 1 to 3 and if he was unable to realise his money from them then alone he could proceed against defendants 4 and 5. The learned Judges held that the order was not appealable. At page 130 the learned Judges expressed the construction of the relevant section in the following manner: "We think that the word ‘determination’ in section 2(2) must be read in the sense of conclusive determination. In other words, the determination must have the characteristics of a ‘decree’ as defined in the first sentence of section 2(2). At page 130 the learned Judges expressed the construction of the relevant section in the following manner: "We think that the word ‘determination’ in section 2(2) must be read in the sense of conclusive determination. In other words, the determination must have the characteristics of a ‘decree’ as defined in the first sentence of section 2(2). We cannot believe that it was the intention of the Legislature that every order of every description (including interlocutory orders) passed by an execution Court, determining any question at issue between the parties in relation to execution of a decree, should be appealable as a decree." Venkatasubba Rao, J., in Beerankutti v. Amath Mammu3, also understood the section in a similar manner. He accepted the view succinctly stated in Srinivasa Prasad Singh v. Kasho Prasad Singh4, as follows: "Clause (2) of section 2 then provides that the term ‘decree’ shall be deemed to include the determination of any question within section 47, but shall not include any adjudication from which an appeal lies as an appeal from an order. This extended definition of the term 'decree,' it will be observed, follows the primary definition that the term ‘ decree ‘ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit." In that case as the order was only one of amendment of an execution petition, the learned Judge held that that was not a final adjudication conclusively determining the rights of the parties. In Gopalaswami Mudaliar v. Thyagarajaswami Devastanam5, Rajamannar, J., (as he then was) considered the judgment of Venkatasubba Rao, J., in Beerankutti v. Amath Mammu3, and did not accept the position that interlocutory orders are not appealable. But a perusal of the judgment does not show that the learned Judge did not accept the long-established construction of section 2(2), Civil Procedure Code, for he held that the order in question though interlocutory in nature was appealable because the order definitely negatived the right claimed by the decree-holder which was the subject-matter of the amendment petition. In Mst. Durga Devi v. Hansraj6, the question was whether an order staying execution till the decision of the appeal fell under section 2(2) read with section 47, Civil Procedure Code, 1908 and was appealable. In Mst. Durga Devi v. Hansraj6, the question was whether an order staying execution till the decision of the appeal fell under section 2(2) read with section 47, Civil Procedure Code, 1908 and was appealable. The combined effect of section 47, Civil Procedure Code and section 2(2), Civil Procedure Code, was expressed by the learned Judges in the following manner: "The combined effect of these sections is that an order passed in execution proceedings will be tantamount to a ‘decree’ if (a) so far as regards the Court passing it, it conclusively determines a question; (b) arising between the parties to the suit, in which the decree was passed, or their representatives, and (c) relating to the execution of a decree;“ At page 407 the learned Judges quoted with approval the following view of Le Rossignol, J., in Sardar Khan v. Fateh Din1: "Under the present law, all questions without exception, i.e., all questions which determined the rights and liabilities of the parties in the matter of the execution of the decree are appealable.. Now, a decision that execution shall not take place does determine a right for the time being and may have very, far-reaching results. Stay of execution is a question relating to execution; it stops-execution dead." In Kunhikavu v. Thattan Kesavan2, Panchapagesa Sastri, J., held that an appeal lay against an order under the Madras Tenants and Ryots Protection Act (XVII of (1946). The learned Judge accepted as well established and uncontroverted position when he observed: “Of course an order sought to be appealed against must involve a final determination of the rights.” Numerous decisions which have not found their way into the law reports have also accepted the same position. I should not be understood to have accepted the conclusion arrived at on the facts of each case by the learned Judges in the various decisions cited by me, but I have referred to them only in support of the position that unless an order under section 47, Civil Procedure Code, conclusively determines the rights of the parties, so far as that Court is concerned no appeal lies against that order. The next question is whether in the present case, an order under section 20 of the Madras Agriculturists Relief Act, conclusively determines the rights of the parties so far as the executing Court is concerned. The next question is whether in the present case, an order under section 20 of the Madras Agriculturists Relief Act, conclusively determines the rights of the parties so far as the executing Court is concerned. Though there is a practical unanimity on the question whether an order in a stay petition relates to execution or not, there is a sharp cleavage of judicial opinion on the question whether it finally determines the rights of the parties. I shall now proceed to consider the cases cited before me in an attempt to evolve a principle to reconcile, if possible, the various decisions. The learned counsel for the appellant contended that an order granting or refusing stay under section 20 of the Madras Agriculturists Relief Act is summary in character and is only ancillary to the main application under section 19 of the Act; and in support of this contention he relied upon a number of decisions of this Court. In Swaminatha Odayar v. Srinivasa Aiyar3, Burn and Stodart, JJ., held that no appeal lay against an order under section 20 of the Act. Two grounds were given in support of that view: (1) The question raised under section 20 is one between the. executing Court and the applicant; and (2) that section 20 is only ancillary to section 19 and the enquiry contemplated by section 20 was an enquiry of a summary kind and that all that was necessary was that the applicant should show the Court that prima facie he was entitled to the benefits of the Act. I cannot agree with the learned Judges when they said that the question under section 20 is one between the Court and the petitioner. As I have already pointed out, under section 20 the Court will have to find out whether the petitioner is entitled to relief under the Act and therefore the order would certainly affect the rights of the parties. When such is the nature of the order it is impossible to say that the question is a matter between the Court and the petitioner. The application will certainly have to be decided between the parties after giving the requisite notice. Even in regard to the second ground I do not see any justification in the provisions of section 20. The Court will have to decide whether the petitioner is entitled to relief under the Act. The application will certainly have to be decided between the parties after giving the requisite notice. Even in regard to the second ground I do not see any justification in the provisions of section 20. The Court will have to decide whether the petitioner is entitled to relief under the Act. The section does not prescribe the mode of enquiry. It does not say that the Court can pass an order under section 20 on its prima facie view. But assuming that the disposal is summary, it does not affect the real question to be decided in the case, namely, whether that disposal is a conclusive determination between the parties so far as the Court passing the said order is concerned. In Saraswati Ammal v. Arabusa Sahib1, Wadsworth, J., held that the period of limitation prescribed under the proviso to section 20 does not apply when an application under section 20 of the Act was dismissed for default. In dealing with that question the learned Judge no doubt observed that the executing Court had to be satisfied prima facie that the applicant was a person who would be entitled to present the application under section 19 of the Act; and that section 20 did not contemplate any final decision on the question of the right of the applicant to apply under section 19. The learned Judge also gave other reasons for his view by holding that a dismissal of an application under section 20 for default would not bar a substantive application under section 19. I am not concerned here with the question whether the order under section 20 finally decides the question of the right of the applicant to apply under section 19. I am only concerned with the question whether the decision of an executing Court under section 20 is a final decision conclusively, determining the rights of the parties so far as the executing Court is concerned. In Narasimha Raju v. Brundavanasahu2, Abdur Rahman and Somayya, JJ., were dealing with the question whether applications under sections 20 and 19 would lie in the Berhampore Sub-Court under the appellate jurisdiction of the Patna High Court in regard to execution proceedings pending in that Court with reference to the properties which were excluded from its jurisdiction by reason of the constitution of the Orissa Province. If the application under section 20 related to execution it would be maintainable in the Subordinate Judge’s Court, Berhampore, by reason of some transitory provisions. In dealing with that question, the learned Judge observed: “The application under section 20 of Act IV of 1938, could only be made to the Court executing the decree and would have to be regarded in the absence of any authority to the contrary as an application ancillary to the proceedings in execution-its main object being to stay proceedings in execution and nothing more. In that respect it would be like an ordinary application for adjournment which though not an application relating to execution, discharge or satisfaction of a decree must be prima facia held to be ancillary in its purpose and not independent in the sense that it would affect the liability under the decree either wholly or partially.” As in their view the proceedings under section 20 were ancillary to execution they held that it was maintainable in the Berhampore Sub-Court. The question whether the proceedings were ancillary or independent may be relevant for an enquiry in that case; but in this case the question to be considered is whether an order under section 20, whether the proceedings were ancillary or independent conclusively determines the rights of the parties so far as the executing Court is concerned. The learned counsel for the appellant cited a long catena of cases where it was held that an order in a stay application is not appealable. In Mangat Rai v. Babu Ram3, a Bench of the Allahabad High Court held that no appeal lies against an order rejecting an application for stay of sale as the order does not involve any question relating to the execution of the decree which would amount to an adjudication conclusively determining the rights between the parties with regard to matters in controversy. The order in that case was a simple one of dismissal of an application for stay of sale. In Inayat Beg v. Umrao Beg4, a Bench of the Allahabad High Court held that an order refusing stay of execution is not a decree within the meaning of section 2 and that no appeal lay against that order. No reasons are given for that view. In Inayat Beg v. Umrao Beg4, a Bench of the Allahabad High Court held that an order refusing stay of execution is not a decree within the meaning of section 2 and that no appeal lay against that order. No reasons are given for that view. In Janardhan Triambak v. Martand Triambak5, an application was filed for stay of a decree pending the disposal of another suit in which the petitioner prayed for a declaration that the decree sought to be stayed was void and incapable of execution against him. The learned Judges held that the order was not a decree on the ground that the question relating to the stay of execution was within the discretion of the Court to which the application was made and that it was certainly not desirable to extend the number of the appealable orders unless there was a distinct authority for such an extension. They also relied upon the omission of the words “or to stay of execution thereof” in section 47. In Beharilal v. Badri Prasad1, the order of the executing Court was that the decree-holder should first proceed to realise the balance of the decretal money from defendants 1 and 2 and if he was unable to realise the money from them, then alone he should proceed against defendants 4 and 5. It was contended for the appellant that the order was one passed by the executing Court under section 47, determining the rights of the parties in execution and it was argued that an appeal lay against that order, but the learned Judges rejected the contention on the ground that the order did not conclusively determine any question in issue between the parties relating to the execution of the decree but merely decided the mode in which the execution should proceed. In Hussain Bhai v. Beltie Shah Gilani2, the learned Judges held that no appeal lay from an order of stay of execution of decree for a definite period. They held that the order did not determine the rights and liabilities of the parties with reference to the relief granted by the decree but merely decided the incidental question whether execution should proceed at once or after an interval of two months. The learned counsel for the respondent cited before us cases where appeals were entertained against orders of stay. The learned counsel for the respondent cited before us cases where appeals were entertained against orders of stay. In Lingam Krishnabhupati Devu v. Kandula Sivaramayya3, a Bench of this Court held that an appeal lay from an order refusing stay of execution under section 243, Civil Procedure Code (Order 21, rule 29, Civil Procedure Code) pending another suit between a decree-holder and the judgment-debtor. The learned Judges followed the decision of other Courts, but there is no discussion in the judgment. In Mst. Durga Devi v. Hansraj4 , the question was whether an order staying execution pending the decision of an appeal is appealable. The learned Judges held that the said order falls under section 2(2) read with section 47, Civil Procedure Code, and is therefore appealable. The reasoning of the decision is found at page 407, and it is thus stated: “I respectfully and whole-heartedly agree with the learned Judge that an order, which stays execution of a decree, pending disposal of the appeal against the decree, finally and conclusively determines (so far as the Court passing such an order is concerned,) the very important right of the decree-holder to reap forthwith the fruits of the decree. It is no doubt true that the execution proceedings may, and will be revived after the disposal of the appeal. But in that event, and from that stage, the execution will really be that of the decree of the appellate Court which will have superseded the trial Court of which execution was stayed by the order in question.” This principle equally applies to an order under section 20 of the Madras Agriculturists Relief Act. In Har Narainlal v. Mathura Prasad5, it was held that an order staying execution of a decree in accordance with the provisions of the Temporary Postponement of Execution of Decrees Act amounts to a decree and is appealable. At page 520 the learned Judges observed, “Now, in the present instance there was a controversy between the parties as to the judgment-debtor’s right to have the execution of the decree postponed during the operation of the Temporary Postponement of Execution of Decrees Act. That Act conferred upon judgment-debtors who were agriculturists a very valuable right. The right conferred by section 3 was one which was in dispute between the parties in the execution Court. The order of the Court proceeded upon a determination of that question. That Act conferred upon judgment-debtors who were agriculturists a very valuable right. The right conferred by section 3 was one which was in dispute between the parties in the execution Court. The order of the Court proceeded upon a determination of that question. The Court conclusively and finally decided that the judgment-debtor was an agriculturist and entitled to the benefit of section 3 of the Act. Once the judgment-debtor bad established that he was an agriculturist, then he was, of right, entitled to stay of the execution of the decree against him.” These observations apply to the facts of the present case. In Nagar Chandra Sardar v. Kali Pado Das1, it was held that an order staying or refusing to stay execution of a decree on the ground that execution was or was not barred was still an order made under section 47, Civil Procedure Code and was subject to appeal as a decree. Stay was asked on the ground that the judgment-debtors were debtors within the meaning of the Bengal Agricultural Debtors Act. The learned Judges held that the decision of the executing Court that the judgment-debtors were not debtors within the meaning of the Act would preclude them from pleading it in a subsequent stage of the execution proceedings and therefore it determined conclusively the question relating to the judgment-debtors’ liability with reference to the relief granted by the decree. In Mukimannussa v. Rameswar2. in execution of a decree against the judgment-debtor his holding was sold. The judgment-debtor made an application for setting aside the sale. Subsequently, a notice was issued by the executing Court under section 34 of the Bengal Agricultural Debtors Act but the executing Court refused’ to stay further proceedings and proceeded with the application for setting aside the sale. It was held that the order refusing to stay the execution was appealable. In Sundaresan v. Venkatesiah3, Horwill, J., held that an order under section 7 of Madras Act. XV of 1946 refusing stay of execution was appealable. I have already considered the decision in Kunhikkavuv. Kattan Kesava4, where Panchapagesa Sastri, J., held that an order under section 4 of Act XVII of 1946 is appealable if it involved a final determination of the rights. XV of 1946 refusing stay of execution was appealable. I have already considered the decision in Kunhikkavuv. Kattan Kesava4, where Panchapagesa Sastri, J., held that an order under section 4 of Act XVII of 1946 is appealable if it involved a final determination of the rights. Though there is an apparent conflict of authority on the question to be decided, the learned Judges accepted the principle that an appeal lies against an order staying or refusing to stay execution of a decree if the order conclusively determines the rights of the parties. They differed only in regard to the application of the principle to the facts of each case. It is therefore not possible to say that every order in a stay application is appealable. It would be appealable only if it involves a conclusive determination of the rights of the parties so far as the executing Court is concerned. In the present case, as I have already stated, very valuable rights of the parties are decided. In one contingency the temporary stay granted would be extended till the disposal of the application under section 19. If the decree is satisfied after scaling down under section 19, no question of further execution of the decree would arise. If amended, only the amended decree will be executed. Only if the application under section 19 is dismissed can the decree, as it stands, be executed. But till that contingency happens the judgment-debtor would be saved from further execution of the decree. Even from the point of view of the decree-holder his rights would substantially be affected. At this stage it will be convenient to consider the decision of the Judicial Committee in Adaikappa Chettiar v. Chandrasekhara Thevar5, on which the learned counsel for the respondent strongly relied. The facts of that case may be briefly stated. On the 15th of September, 1925, a final decree was passed in a mortgage suit. The decree-holder took out execution petition No. 79 of 1933 to enforce the final decree, and certain of the mortgaged properties were advertised for sale; but, before a sale had been effected, the Madras Agriculturists Relief Act came into operation, in March, 1938. On the 8th July, 1938, the judgment-debtor filed E.A.No.237 of 1938, in E.P.No.79 of 1933, under sections 20, 19 and 8 of the Act and under sections 47 and 151 of the Civil Procedure Code. On the 8th July, 1938, the judgment-debtor filed E.A.No.237 of 1938, in E.P.No.79 of 1933, under sections 20, 19 and 8 of the Act and under sections 47 and 151 of the Civil Procedure Code. On 3rd August, 1938, the judgment-debtor had made an independent application, I.A.No.361 of 1938, for amending the decree in accordance with the provisions of the Act. E.A.No.237 of 1938 was dismissed on the ground that the judgment-debtor was not an agriculturist. I.A.No.361 of 1938 was also dismissed on the same ground. Appeals were filed against both the orders, and the High Court held that no appeal lay against the order in I.A.No.361 of 1938, but permitted the appellant to convert his appeal into a civil revision petition and allowed the revision. This Court allowed the other appeal and set aside the lower Court’s order and remanded it for fresh disposal. The Judicial Committee held that the order in I.A.No.361 of 1938 was a decree and that an appeal lay to the High Court and that therefore,, the revision should not have been entertained. As regards the appeal against the order in E.A.No.237 of 1938, their Lordships made the following observation: “The appeals against the order of the 25th July, 1938, was rightly entertained. That order related to the execution, discharge or satisfaction of a decree within the meaning of section 47 of the Code, and an appeal, therefore, lay under section 96.” The Judicial Committee pointed out in the judgment that the order made in I.A.No.361 of 1938 was in the suit itself and that that order was a decree as such and therefore appealable. In regard to the other order in E.A.No.237 of 1938, their Lordships held it related to execution, discharge or satisfaction of the decree within the meaning of section 47 of the Code, and an appeal therefore lay under section 96. Though the Court happened to be the same, the application under section 19 could not be filed in execution, but it should be by way of an application for the amendment of the decree. Therefore, the fact that sections 19 and 8 were also clubbed up with section 20 could not have empowered the executing Court to decide questions other than those that arose under section 20 of the Act. Therefore, the fact that sections 19 and 8 were also clubbed up with section 20 could not have empowered the executing Court to decide questions other than those that arose under section 20 of the Act. I am, therefore, inclined to hold that, on the same reasoning, an application under section 20 is a decree appealable under section 96. It may be possible to distinguish the Judicial Committee’s decision on the ground that the executing Court in that case purported to decide questions arising under sections 8 and 19 also in execution and that, therefore, an appeal lay against the order purporting to decide valuable rights. But it is not necessary to import fresh reasoning into the judgment of the Judicial Committee as even in an application under section 20 of the Madras Agriculturists Relief Act the rights of the parties are decided. In my view, this decision goes a long way in support of the contention of the learned counsel for the respondent. In the result, I hold that an appeal lies against an order under section 20 of the Madras Agriculturists Relief Act. Panchapakesa Ayyar, J.:-I agree. Balakrishna Ayyar, J.:-I too agree with the answer proposed. (After the expression of the Opinion of the Full Bench, the Court, Subba Rao, J., delivered the following) JUDGMENT: As an appeal lies against the order of the lower Court the revision petition is not maintainable. The petition is dismissed without costs. K. S. ----- Petition dismissed.