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Ganesh Laxman Vs. Raosaheb Premchand Ichharam - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 654 of 1954
Judge
Reported inAIR1956Bom249
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 41, Rule 6 and 6(2) - Order 47
AppellantGanesh Laxman
RespondentRaosaheb Premchand Ichharam
Appellant AdvocateG.R. Madbhavi, Adv.
Respondent AdvocateV.S. Desai, Adv.
Excerpt:
.....or some other suitable terms, the lower court had clearly overlooked the material provisions in sub-rule (2) of the rule 6 of the civil procedure code - - madbhavi does not dispute the position that, sin case the executing court is satisfied that the value of the properties under attachment exceeds the decretal amount it is not necessary to call upon the judgment-debtor to furnish security. in rejecting these arguments, the learned judge appears to have thought that the rule conferred wide discretion in him either to ask for security or not from the judgment-debtor and this view is clearly inconsistent with the plain words used by it. in a case like the present one, where the decree is in respect of a large amount, i am not prepared to make any such assumption in favour of the..........that; the opponent moved the executing court under order 41, rule 6, sub-rule (2) for stay and the learned judge made an order staying the execution of the decree until the decision of the appeal pending in this court.this order was passed on 28-10-1953. thereafter the petitioners applied for a review of this order before the learned judge on two grounds. they alleged that the order passed by the learned judge was, on the face of it, illegal inasmuch as order 41, rule 6. (2) merely authorised the learned judge to stay the sale and not the whole of the execution proceeding itself.the second ground urged in support of the plea for review was that, in not requiring the opponent to furnish security, the order was inconsistent with the plain words used in order 41, rule 6(2). the first.....
Judgment:
ORDER

1. This revisional application raises a short question as to the effect of the provisions contained in Order 41, Rule 6, Sub-rule (2). The petitioners have obtained a decree against the opponent for Rs. 1,18,000/- and odd in Civil Suit No, 60 of 1950. Against this decree the opponent has-preferred an appeal No. 439 of 1952 in this Court.

Since the appellant did not apply for and obtain an order of stay, the petitioners proceeded to execute the decree by filing darkhast No. 5 of 1952. In these proceedings, immovable properties belonging to the judgment-debtor consisting of lands & houses were attached. It was at this stage that; the opponent moved the executing Court under Order 41, Rule 6, Sub-rule (2) for stay and the learned Judge made an order staying the execution of the decree until the decision of the appeal pending in this Court.

This order was passed on 28-10-1953. Thereafter the petitioners applied for a review of this order before the learned Judge on two grounds. They alleged that the order passed by the learned Judge was, on the face of it, illegal inasmuch as Order 41, Rule 6. (2) merely authorised the learned Judge to stay the sale and not the whole of the execution proceeding itself.

The second ground urged in support of the plea for review was that, in not requiring the opponent to furnish security, the order was inconsistent with the plain words used in Order 41, Rule 6(2). The first contention was upheld by the learned Judge and he has accordingly modified His order by directing that the sale of the judgment-debtor's Immovable properties, be stayed.

The second objection, was rejected by him and he refused to make an order calling upon the-opponent to furnish any security. It is this latter part of the order which is challenged before me-by Mr. Madbhavi on behalf of the decree-holder.

2. Mr. Madbhavi argues that under Order 41, Rule 6, Sub-rule (2), when the Court stays the sale on the application of the judgment-debtor, the Court has to impose terms as to giving security or otherwise on the Judgment-debtor and his grievance is that the learned Judge has refused to review his order even though his attention was invited to the material words used in the relevant rule.

It is significant that the learned Judge entertained the review application and the only reason given by him for not modifying his earlier order in the matter of calling upon the judgment-debtor to furnish security is that he was disposed to take the view that considerable immovable properties of the judgment-debtor had already been attached and so it was unnecessary to direct him to furnish security.

If this observation means that the properties of the judgment-debtor, which have been attached, in their value cover the whole of the decretal amount, the learned Judge would be right. (Mr. Madbhavi does not dispute the position that, Sin case the executing Court is satisfied that the value of the properties under attachment exceeds the decretal amount it is not necessary to call upon the judgment-debtor to furnish security.

But his argument is that the learned Judge has never applied his mind to this aspect of the matter at all, and in my opinion this argument appears to be justified. Both while the stay was granted by the learned Judge in the first instance and when the matter was heard by him under p. 47, the learned Judge does not appear to have addressed himself to the question as to whether the value of the properties is more than the decretal amount.

It was stated before him by the decree-holder that several awards had been passed against the Judgment-debtor and that before the appeal preferred by the judgment-debtor in this Court is finally disposed of the value of the properties might decrease. In rejecting these arguments, the learned Judge appears to have thought that the rule conferred wide discretion in him either to ask for security or not from the judgment-debtor and this view is clearly inconsistent with the plain words used by it.

The rule requires that, in granting stay terms must be imposed upon the judgment-debtor for the protection of the decree-holder. The terms I may be as to giving security or they may take some other shape or form. Sub-rule (2) of Rule 6 of Order 41 does not appear to authorise the executing Court to dispense with the Imposition of any such terms on the Judgment-debtor except where the property under attachment which is sought to be sold is, in the opinion of the executing Court, enough to cover the decretal amount.

On the record, neither party has led any evidence by affidavits or otherwise to show what the value of the attached properties really is and so it was impossible for the learned Judge to have come to the conclusion that the value of the properties under attachment was more than the decretal amount.

Indeed, he does not appear to have considered this aspect of the matter at all. Mr. Desai is now attempting to support the final order by asking me to assume that the observation made by the learned Judge implies that the value of the properties attached is more than the decretal amount. In a case like the present one, where the decree is in respect of a large amount, I am not prepared to make any such assumption in favour of the judgment-debtor.

Therefore, it seems to me that this is a case where the petitioners are entitled to invoke the revisional jurisdiction of this Court. In refusing to require the judgment-debtor to furnish security or to submit to some other suitable terms, the learned Judge has clearly overlooked the material provisions in Sub-rule (2) itself.

3. I must accordingly modify the order passed by the learned Judge and direct that the stay of the sale proceedings should be stayed on the following terms. The learned Judge should find the value of the properties under attachment. Parties should be given an opportunity to lead evidence by affidavits or otherwise in that behalf. If the value of the properties under attachment is enough, in the opinion of the learned Judge to cover the decretal amount, then the learned Judge may not require the judgment-debtor to furnish security.

In considering this matter, the learned Judge may have to take into account the decrease, If any, in the value of the properties pending the final disposal of the Judgment-debtor's appeal in this Court. If the value of the properties under attachment is less than the decretal amount, the learned Judge will direct the judgment-debtor to furnish security for the balance.

If the value of the properties is found to be more than the decretal amount and no security is thereupon required to be furnished by the judgment-debtor, the decree-holder should get his costs of the revisional application. If the properties are found to be less in value than the decretal amount and security is required to be furnished by the judgment-debtor, there would be no order as to costs of this revisional application.

4. Order accordingly.


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