1. These are two applications in the same matter, one being for an injunction to prevent the decree-holder putting his decree into execution, and the other for stay of the same decree. They arise in the following circumstances. The applicants, who were the defendants in the original suit, succeeded in the first Court, but failed to prove that they were permanent tenants in the Court of appeal, and possession in favour of the Jahagirdar was decreed against them. They have appealed to this Court, and also made an application for stay of execution, and in view of the ruling of Baker J. in Gangappa v. Mahadevgauda (1931) Civil Appln. No. 343 of 1931, decided by Baker J. on August 21, 1931 (Unrep.) and on the Registrar's initiative, they brought the matter to Court. In that case Baker J. has held that no application for stay of execution can be entertained where execution has not so far been applied for. The authority he relies on is that of Janardan v. Nilkanth I.L.R. (1901) Bom. 583 3 Bom. L.R. 142 and Srinibash Prasad Singh v. Kesho Prasad Singh I.L.R. (1911) Cal. 754 Prima facie the ruling of Janardan v. Nilkanth appears to be applicable, but on an analysis it seems to me that it is not. It is stated in the report that the application for stay was made under (old Code) Section 545, but in the judgment their Lordships say: ' This application was made under Section 545 of the Civil Procedure Code. It is not alleged that any order has been made for the execution of the decree; therefore no order can be passed under Section 546 of the Civil Procedure Code. We discharge the rule with costs.' From the latter part of the ruling and from the statement of the facts in the preliminary part, it would appear that the question then was in respect of moveable property, and as far as we can gather, that it was treated as an application under Section 546 perhaps in the course of the arguments, and what their Lordships say is that no order can be made under that section (now Order XLI, Rule 6), which would obviously be so, since the two parts of that rule each begin with expressions negativing such an order being made, those being :-'Where an order is made for the execution ' and ' Where an order has been made for the sale.' I think that Janardan v. Nilkanth is an authority on Rule 6 and not on Rule 5. The case of Srinibash Prasad Singh v. Kesho Prasad Singh does not seem to have any direct application here. There is no ruling there on the point we now have to decide, and the decision turned on the question whether the Secretary of State had legally pledged his authority for the security offered by the Government of Bengal or not, and it was held that he had not. No other authority has been quoted to us, and I must turn to the words of Rule 5. In the first sub-rule there are two clauses. The first provides that an appeal shall not operate as a stay of proceedings under the decree or order appealed from, except so far as the appellate Court may order and the second, that the execution of a decree shall not be stayed merely because an appeal has been preferred, but that the appellate Court may for sufficient cause order stay of execution of such a decree. The first clause applies to proceedings, and the second to execution of decrees, and there seems to me to be nothing in the second clause, which is now the relevant one, to prevent an appellate Court for sufficient cause ordering stay of execution of a decree, whether an application to execute it has in fact been made or not. We are aware that it is the practice of this Court to allow stays in such cases, and as far as I can see, there is nothing to forbid an order of stay of such a nature. We, therefore, confirm the rule in C.A. No. 742 of 1931 on the security already furnished, which is to be continued till the decision of the appeal. Costs to be costs in the appeal. The rule in C.A. No. 1125 of 1931 is discharged. No order as to costs.
2. The question raised in this application is whether under Order XLI, Rule 5, the appellate Court can order stay of execution of the decree appealed from only if an order for execution has been made by the lower Court. In terms Rule 5 of Order XLI does not lay down any such limitation on the power conferred by it. All that it says is 'but the Appellate Court may for sufficient cause order stay of execution of such decree.' The condition that an order for execution must have been made is to be found only in Rule 6 of Order XLI, and that is in respect of taking security from a successful decree-holder who is executing his decree. It is there provided that such a decree-holder may be required by the Court to furnish security for making restitution in case the decree or order of the appellate Court goes against him. The reason for that requirement in Rule 6 is obvious. Unless the decree is being executed the stage at which the decree-holder is to be required to furnish security for restitution cannot arise. But the circumstances contemplated in Rule 5 are different. No doubt the appellate Court is not to stay execution unless certain conditions are fulfilled, the nature of which is indicated in Sub-rule (3) of that rule. But assuming that those conditions are fulfilled, and that the appellate Court does think that there is sufficient cause for ordering stay of execution, I do not see why it should be laid down as an additional requirement that this power must not be exercised unless the decree-holder has in fact proceeded to execute the decree. Indeed the laying down of such a requirement would in many cases defeat the object that is sought to be achieved under this rule. The judgment-debtor is not in a position to know when the decree-holder intends to move the Court for executing his decree, and if he is to be prevented from taking a precautionary measure, namely, that of moving the appellate Court to stay execution in anticipation of the decree-holder's move, it seems to me that the protection sought to be afforded to him under this rule might prove illusory.
3. It is argued by Mr. Joshi that the words 'stay of execution of such decree' imply that there must be an attempt to get the decree executed before such an attempt can be stayed. But I do not think that the words imply any such limitation. Stay can be ordered in anticipation of execution as well as in the case in which an application for execution has been made or an order for execution has been obtained. In view, therefore, of the object which this rule seeks to attain, namely, to protect an appellant from substantial loss or hardship which might result from the execution of a decree which is under appeal said which is liable to be set aside in appeal, I think that no such limitation as is suggested can be read into the words of this rule. And I think that in a suitable case the appellate Court has power to order stay of execution of a decree which is under appeal, even though the decree-holder may not have applied to execute the decree.
4. As pointed out by my learned brother the ruling in Janardan v. Nilkanth I.L.R. (1901) Bom. L.R. 142 really is a decision under old Section 546 which corresponds to Rule 6 of Order XLI, and I agree that it does not lay down any restriction on the power to stay execution conferred under Rule 5, as is contended in this case.