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Ramappa Mallapa and ors. Vs. Rudragauda - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Appln. No. 1500 of 1949
Judge
Reported inAIR1951Bom288; (1950)52BOMLR612; ILR1950Bom674
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 5 and 5(1); High Court (Bombay) Appellate Side Rules, 1936 - Rule 11
AppellantRamappa Mallapa and ors.
RespondentRudragauda
Appellant AdvocateA.G. Desai, ;G.R. Madbhavi and ;D.M. Honavar, Advs.
Respondent AdvocateV.H. Gumaste, Adv.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 5(1) - appellate court--power to stay further proceedings in a case--registrar, appellate side, bombay high court--power to stop proceedings--bombay high court, appellate side, rules, 1936.;under order xli, rule 5(2), of the civil procedure code, 1908, the appellate court has the power to direct stay of further proceedings in the case appealed from. in the case of the bombay high court, that power is delegated to the registrar on the appellate side under rule 11(n) of the bombay high court, appellate side, rules, 1936. - .....has got a two-fold power. under the first part of rule 5 (1), the appellate ct has got power to stay proceedings under a decree; & under the latter part of the rule, the appellate ct. has power for sufficient cause to order stay of execution of such decree. it is noticeable that the language of section 545, c p. c. (act xiv [14] of 1882) was different, & it is apparent that the words. 'an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate ct. may order' are new. this suggests that prior to the enactment of the code in its present form, the appellate ct. had power to stay further proceedings presumably under section 151 of the code, & the appellate ct. had power to direct stay of execution of a decree under the then.....
Judgment:
ORDER

Dixit, J.

1. [After stating facts the judgment proceeded: ] As regards civil Appln. No. 1500 of 1949, when the matter was last argued, Mr.Gumaste for the opponent conceded that the learned Registrar has power to grant stay of proceedings under Order 41, Rule 5, C. P. C., but at the hearing of the appln. he contends that the learned Registrar had no jurisdiction to make an order under the provisions of Order 41, Rule 5. Now, under the rules of the High Court of Judicature at Bombay, Appellate Side, 1936, power is given to the Registrar to dispose of certain applns. & Rule 11 (n) refers to applns. fororders under Order 41, Rules 5, 6 & 10, C. P. C., &the; question is whether the learned Registrar has power to make an order staying proceedings pursuant to a preliminary decree. It is not disputed that with respect to the decree for a sum of Rs. 7,500, the learned Registrar would have such power because that would be in respect of stay of execution.

2. As the question is one of practice, I have ascertained from the office as to how the practice stood; and I am informed that the Registrar deals with similar applns. though it is said that there is some doubt as to whether the Registrar has power to act under Order 41, Rule 5, C. P. C. Now, Order 41, Rule 5 (1), is in the following terms :

'An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Ct. may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Ct. may for sufficient cause order stay of execution of such decree.'

3. Mr. Gumaste for the opponent contends that the learned Registrar has power to deal with in appln. for stay of execution of a decree but has no power to deal with an appln. for stay of proceedings. Now, a plain reading of Rule 5 (1) of Order 41 suggests that the Appellate Ct. has got a two-fold power. Under the first part of Rule 5 (1), the Appellate Ct has got power to stay proceedings under a decree; & under the latter part of the rule, the Appellate Ct. has power for sufficient cause to order stay of execution of such decree. It is noticeable that the language of Section 545, C P. C. (Act XIV [14] of 1882) was different, & it is apparent that the words. 'An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Ct. may order' are new. This suggests that prior to the enactment of the Code in its present form, the Appellate Ct. had power to stay further proceedings presumably under Section 151 of the Code, & the Appellate Ct. had power to direct stay of execution of a decree under the then Section 545 of the Code of 1882. Now, Mr. Gumaste for the opponent contends that under the first part of Rule 5 (1) of Order 41, the learned Ragistrar has no such power. I find it difficult to accept this argument, having regard to the language of Rule 11 (n) of the High Court. Appellate Side, Rules, 1936, which is 'Applications for orders under Order 41, Rules 5, 6 and 10.' If the Appellate Ct. has such power--& I hold it to be so--, the language of Rule 11 (n) would show that the Registrar too would have such power. That Rule 5 (1) of Order 41 contains a two-fold power is apparent from the word 'nor' which connects the first part of the rule with the second part;&, in my opinion, the introduction of the words 'an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Ct. may order' goes to show that the Legislature intended to confer upon the Appellate Ct. the power to stay further proceedings. Now, decrees are of two kinds, either preliminary or final; or partly preliminary or partly final. The present case is of a decree which is partly preliminary & partly final. Therefore, the Appellate Ct. would have power to stay further proceedings under the first part of Rule 5 (1) of Order 41, & the Appellate Ct. would have power to direct stay of execution with respect to that part of the decree under the latter part of the rule. If the Appellate Ct. has such power, I am not prepared to hold that that power has not conferred on the Registrar by virtue of Rule 11 (n) of the rules already cited.

4. Mr. Gumaste for the opponent has relied upon a decision of the Patna H. C. in Nena Ojha v. Sambhoo Dutt A. I. R. 1921 Pat. 328 : 56 I. C. 883, & that decision undoubtedly supports his contention. The rule concerned in that case was 'to receive & dispose of an appln. under Order 41, Rules 5, 6 & 10.' This is a decisionof a Division Bench of that Ct. A contrary view seems to have been taken in a Lahore decision, & that is to be found in Karam Elahi v. Mt. Amir-un-nisa A. I. R. 1930 Lah. 108 : 119 I. C. 489. As no case has been cited to me of this Ct., I am entitled to give my own interpretation about this rule.

5. Now, cases relating to stay of proceedings will arise, for example, in suits for partition in which preliminary decrees are passed, also in suits upon mtges , also in suits for dissolution & the taking of partnership accounts, & also in suits for accounts between a principal & an agent. It is to meet these cases that the first part of Rule 5(1) of Order 41 is enacted. Order 41, Rule 5 (1), shows that an appeal by itself shall not operate as a stay of proceedings under a decree, & that is why the rule provides: 'except so far as the Appellate Ct. may order.' It is, therefore, for the Appellate Ct. to direct stay of proceedings if the Appellate Ct. thinks fit to do so. The question whether the Appellate Ct. will or will not in a particular case stay further proceedings is a different question altogether. To my mind, the language of Rule 5 (1) of Order 41, is clear; & giving the words of Order 41, Rule 5 (1), their natural meaning, it seems to me that the Appellate Ct. has power to direct stay of further proceedings, & that power has been delegated to the Registrar under Rule 11 (n) of the Appellate Side Rules. Consequently I overrule the objection and hold that the Registrar haspower to make the order which he has made. [The remainder of the judgment is not material for purposes of reporting.]


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