Somnath Iyer, J.
1. In Special Suit No. 42 of 1959 in the Court of the Civil Judge, Belgaum, there was a decree against the defendant for a sum of Rs. 2,520/- towards mesne profits and costs payable by him. From that decree, an appeal was preferred to this Court and is still pending. In an execution application presented by the decree-holder, there was an order made by the executing court on September 19, 1960, that the property of the judgment-debtor which had been attached should be sold. On March 10, 1961, the judgment-debtor made an application to the executing court which is also the court which passed the decree for a slay of the sale under the provisions of Rule 6 (2) of Order XLI of the Code of Civil Procedure.
2. Meanwhile, the judgment-debtor had also made an application for an order that the execution of the decree under appeal should be stayed, and, an interim order was made by this Court on February 7, 1981, on that application under Rule 5 of Order XLI of the Code of Civil Procedure. The condition subject to which that order was made was that the judgment-debtor should deposit the amount of the decree. On his neglecting to do so within the time allowed, the interim stay order was dissolved. The executing Court dismissed the application presented by the judgment-debtor under Rule 6 (2) of Order XLI of the Code of Civil Procedure, and, the order which it made reads:
'The High Court is seized or the matter. The decretal amount is not paid within the time given by the High Court, This application cannot be considered by this Court. Hence it is rejected. Intimate High Court about non-payment of decretal amount.'
From this order, the judgment-debtor appeals.
3. That the remedy of the judgment-debtor was only by way of a revision petition and not by way of an appeal is the preliminary objection raised by Mr. Mandagi for the decree-holder. There is a conflict of authority on this question, the High Court of Calcutta taking the view that a revision petition is the only remedy, the High Court of Madras taking the view that an appeal lies. It is, however, not necessary to express any opinion on this question since, if the order made by the Court below cannot be sustained, it could be set aside by us in the exercise of our revisional jurisdiction even if this appeal is incompetent. So we should proceed, in my opinion, to consider the sustainability of that order.
4. While Mr. Desai for the judgment-debtor contends that it was the duty of the executing court when an application was made to it under Rule 6(2) of Order XLI of the Cods of Civil Procedure to stay the sale which had been ordered to be held, Mr. Mandagi for the decree-holder asks us to say that the executing court has a discretion to stay the sale or to refuse to do so and that there is 470 imperative duty imposed on it to make an order of stay.
5. Rule 6(2) of Order XLI of the Code of Civil Procedure reads:
(6) (1) *** *** *** *** *** (2) Security in casa of order for execution of decreeappealed from. -- Where an order has beentrade for the sale of immovable property inexecution of a decree, and an appeal is pending from suchdecree, the sale shall, on the application of the judgmentdebtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.'
The provisions of this sub-rule are attracted in all cases in which there is an order for the sale of immoveable property in execution of a decree and that decree in execution of which the sale of the property is so ordered is under appeal. The word 'shall' occurring after the words 'the sale' which has to be given its natural and ordinary meaning does not, it is plain, admit of any other interpretation than that the Court to which an application is presented for the stay of the sale, has no option but to stay it.
6. That that is the true construction to be planed upon the provisions of this sub-rule becomes clear when its provisions are contrasted with those of Rule 5 of Order XLI of the Code of Civil Procedure which contain the word 'may' both in Sub-rule (1) and in Sub-rule (2). If we should say that even in a case in which in execution of a decree which is under appeal, an order is made for the sale of immovable property, and, an application is made by the judgment-debtor for the stay of its sale, the Court which directed the sale has a discretion to stay or to refuse to stay it, we would be overlooking the great dissimilarity which exists between the language in which Rule 5 is worded and that in which Rule 6(2) is couched.
That the provisions of Rule 6(2) direct the stay of 'the sale of immovable property which is brought to sale while Rule 5 authorises the stay of execution of the decree by whatever process such execution is possible or sought, makes it plain that the purpose of Rule 6(2) is that there shall be no sale of the immovable property of a judgment-debtor when the decree in execution of which it is proposed to be sold is itself under appeal. The reason behind this rule is that immovable property belonging to a judgment-debtor should not be lost to him in the event of the decree under appeal undergoing a reversal which might conceivably happen in a case where in the sale in execution of the decree, the purchaser is a stranger.
7. If that be the intention underlying the provisions of Rule 6 (2) which is so worded as to make it obligatory on the part of the Court to stay the sale, an application falling within the full generality of its scope cannot be refused if the language of Rule 6(2) is wide enough to cover it.
8. This view which we should, in my opinion, take of the provisions of this sub-rule is also the view taken by the High Courts of Calcutta, Madras, Bombay and Patna. See Ram Nath Singh v. Raja Kamleshwar Prasad Singh, 9 Ind Cas 323 (Cal) Dhirendra Nath v Sailaj Kumar, AIR 1940 Cal 582 Jitendra Nath Choudhury v. Bholanath Choudhury, 44 Cal WN 701; Rukmani Ammal v. Subramania Sastrigal AIR 1940 Mad 82; Shivbasappa Chinnappa v. Marigowda Huchangowda AIR 1934 Bom 252 and Beni Singh v. Ramasaran Singh AIR 1936 Pat 443.
9. But Mr. Mandagi asks us to say that we should prefer the view taken by Kendall J., in Har Narain Sahi v. Sadhu Govind Rai : AIR1932All551 , which was to the effect that the provisions of Rule 6(2) of Order XLI were complementary to those of Rule 5 and that, for that reason, the stay of the sale under Rule 6 (2) was not imperative.
10. I have found great difficulty in understanding the ratio of this decision. Rule 6(2) makes it plain that its provisions are quite independent of those of Rule 5 and that, for the exercise of power under Rule 5, the aid of no other power is necessary since Rule 5 is a self-contained provision under which an appellate court may stay execution of the decree when the appeal is before it, and, the court which passed the decree, may, even before an appeal is preferred, stay execution for sufficient cause. With great respect, I dissent from the view expressed by Kendall J., which was also dissented from in AIR 1940 Mad 82 and 44 Cal WN 701. It is also interesting to notice that in Sat Prashan Singh v. Champa Devi, 1950 All LJ 712, Seth J., said something which, when properly understood, is something quite at variance with what Kendall J., said in : AIR1932All551 .
It is true that Seth J., did not refer in the course of his decision to me pronouncement of Kendall J., but it becomes clear from what was said by Seth J. that he appeared to have taken the view that if the requisite conditions for attracting Rule 6(2) exist, the Court has no option but to make an order under it.
11. But it was said that since in the appeal preferred by the judgment-debtor which is still pending be-fore this Court, the interim order of stay which was first made was later vacated, the executing Court had become functus officio and could not stay the sale which if order-ed, would according to Mr. Mandagi conflict with the order made by this Court.
12. This view pressed on us, of course, received support from the decision of a single Judge in Y. Satyanarayanamma v. Y. Nageswara Rao, (1959) 2 Andh WR 439 in which it was said that once an application before the appellate Court under Rule 5 of Order XLI was refused, the executing court becomes 'functus officio' and cannot make an order under Rule 6(2) of Order XLI.
13. I must say that I do not agree that that is the correct position. The words 'functus officio' mean 'has discharged his duty'. That being so, if is not easy to understand how an order refusing stay of execution made by an appellate Court, can be depended upon in support of the assertion that the executing Court which is asked to make an order under Rule 6 (2) of Order 41 has discharged its duty. The duty imposed by Rule 6 (2) is discharged only when an order is made under its provisions according to law. That duty does not come to an end by reason of an order made by the appellate Court under Rule 5 of Order 41 whose provisions do not overlap those of Rule 6 (2). An order for stay of execution which n appellate Court may make under Rule 5 of Order XLI is an order by which every process which may be taken in execution of a decree may be stayed, whereas, Rule 6 (2) does no more than to authorise the stay of the sale of the immovable property belonging to the judgment-debtor when it is brought to sale.
Further, an order under Rule 5 may be refused by an appellate Court unless sufficient, cause is established for the stay of execution and unless the conditions enumerated in Sub-rule (3) of Rule 5 exist. But Rule 6 (2) the language of which is quite dissimilar to that of Rule 5, does not require for the exercise of jurisdiction conferred' by it, the existence of any of those conditions but creates an independent power exercisable only in manner specified by it and on the establishment of the conditions necessary for its exercise. It would not, in my opinion, be right to mix up the provisions of Rule 5 with those of Rule 6 (2) and to say that exercise of power under Rule 5 or its refusal has the result of ousting the jurisdiction created by Rule 6 (2).
14. The correct view which in my opinion we should take is that once there is an appeal from the decree and an order is made for the sale of immovable property in execution of that decree, the Court which has directed the sale is without any option but to order the stay of the sale if the judgment-debtor asks for it. The only area in which that Court exercises its discretion is in the matter of the conditions which it may impose subject to which the sale could be stayed. Although the power exercisable in that area is plenary and full, there is no such power to refuse to stay the sale.
15. We must, therefore, in my opinion say that the order by which the executing Court refused to stay the sale which rested on entirely irrelevant and insupportable grounds and which is also one by which it refused to exercise its jurisdiction, cannot therefore be supported and it is therefore set aside.
16. We are informed during the argument that after the stay was refused and the stay was vacated by this Court in the appeal, the sale which was proposed to be held has been conducted and that what is now awaited is its confirmation. So, Mr. Mandagi contended that the judgment-debtor's success in this appeal can be of little utility to him since what was sought to be prevented under Rule 6 (2) of Order 41 has very much been accomplished.
17. But, it is clear that this endeavour to sustain the sale conducted in direct transgression of the provisions of Rule 6(2) of Order XLI has to fail. If that sub-rule prohibited the executing Court from proceeding to hold the sale and it nevertheless proceeded to hold it, the sale so held in transgression of the statutory provisions must fail with the disappearance of the order by which the stay was refused. If Rule 6 (2) places an embargo on the further progress in the execution proceedings in the form of a stay of sale of the judgment-debtor's property but that embargo was disregarded, what is done pursuant to such disobedience to the sub-rule can have no existence in the eye of law. In any event, it becomes our duty to quash what has been so done.
18. In my opinion, we should therefore make the further order in this case which it is our duty to make set ting aside the sale which has been conducted in plain disobedience, to the provisions of the Code of Civil Procedure. The sale is accordingly set aside.
19. The executing Court is now directed to proceed to consider and dispose of the application presented by the judgment-debtor under Rule 6(2) of Order 41 of the Code of Civil Procedure on its merits and according to law and in manner not inconsistent with this order.
20. In the circumstances, there will be no order as to costs.
Govinda Bhat, J.
21. I agree.
22. Order accordingly.