The Judgment of the Court was as follows:—
This Rule is directed against an order of the learned Subordinate Judge of Jessore, dated the 16th of September, 1939, whereby he refused to stay certain execution proceedings in connection with a decree which had been transferred to his Court from the Court of the Subordinate Judge of Dhanbad.
A preliminary objection has been raised by the learned Advocate for the Opposite Party in this case to the effect that this application in revision under sec. 115 of the Code of Civil Procedure is incompetent inasmuch as an appeal lay to this Court against the order of the learned Subordinate Judge on the footing that it was a decree under sec. 47 read with sec. 2(2) of the Code of Civil Procedure. In support of this contention reliance is placed upon the decision of Mr. Justice Nasim Ali and Mr. Justice Rau in Civil Revision Cases Nos. 963, 1506 and 1650 of 1939 [Nafar Chandra v. Kalipada ]. In those cases the learned Judges held that
“The question whether the execution of a decree is or is not barred, whether temporarily or permanently, by reason of some special law—in the case before us, by the Bengal Agricultural Debtors Act—is a question within section 47 of the Code of Civil Procedure, and its determination is accordingly a decree within the meaning of the definition in section 2(2) of that code. It follows that an order staying or refusing to stay execution upon the ground that execution is or is not barred by the special law in question is subject to appeal as a decree.”
It is, however, argued by the learned Advocate for the Petitioner that the decree with which we are concerned in the present case was a Small Cause Court decree and that it had been transferred to the Subordinate Judge of Jessore for execution in the exercise of the Small Cause Court Jurisdiction of that Court. It appears, however, from a reference to the record that the application for execution is in respect of the immovable property of the judgment-debtor. It is true that the application originally contained a prayer to the effect that execution might be taken against the movable property of the judgment-debtor in the first instance, but the list of the movable property in respect of which it was proposed to proceed has been cancelled in the form of the application and it follows, therefore, that the application for execution is primarily an application to execute the decree against the immovable property of the judgmental debtor. In this connection it is provided in sec. 7(a)(iii) of the Code of Civil Procedure that the provisions of the Code which relate to the execution of decrees against immovable property shall not extend to Small Cause Courts. Consequently in dealing with this application for execution, the learned Subordinate Judge of Jessore was acting in the exercise of his ordinary jurisdiction and his order is, therefore, subject to the ordinary rules in respect of appeals as provided by sec. 42 of the Code. As held by Mr. Justice Nasim Ali and Mr. Justice Rau, an appeal lies against an order of this nature passed in execution proceedings and it, therefore, follows that this application in revision was misconceived.
The Rule must, therefore, be discharged with costs. The hearing-fee is assessed at one gold mohur.
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