1. This is an application that money deposited in the Collector's Court to satisfy a decree obtained by the respondent, Musammat Moti Kunwar, should not be paid over to her until she has deposited security for the due performance of such order as His Majesty in Council may make in an appeal which is now pending against a decree of this Court. The suit out of which the appeal arose was brought by Musammat Moti Kunwar in the Court of the Assistant Collector of Etawah to recover profits of certain property. That Court granted the plaintiff a decree. Thereupon an appeal was preferred to the High Court, with the result that the High Court affirmed the decision of the Court below. An application was then made for leave to appeal to His Majesty in Council. In this case, as also in a case in which the title of the appellant to the property, in respect of portion of which the claim for profits was made by Musammat Moti Kunwar, application for leave to appeal was made to this Court. The Court was of opinion that inasmuch as the amount of the decree was only Rs. 8,000 odd and no substantial question of law was involved in the appeal, the Court ought not to grant the application. Thereupon an application was made to His Majesty in Council for special leave to appeal and leave was granted in July 1909. Musammat Moti Kunwar put her decree into execution and thereupon the appellant deposited the sum of Rs. 8,005-14-9 in the Collector's Court at Etawah, to which the decree had been transferred for execution, with a request that this sum be not paid over to the respondent pending the decision of the contemplated appeal to His Majesty in Council. The present application for an injunction was then made to this Court and an order was passed directing that the money in the Collector's Court should be retained pending the disposal of the application. Cause has been shown and it is contended on behalf of the respondent that this Court has no jurisdiction to grant the application inasmuch as leave to appeal was not granted by it; that the only Court which can put a stay on the execution of the decree of this Court is the Judicial Committee which is now seised of the appeal of the appellant. We think that this contention is well-founded. In the case of Mahesh Chandra Dhal v. Satruyhan Dhal 27 C. 1, the question was considered, whether a High Court under similar circumstances was empowered to appoint a receiver under the provisions of the section of the Code of 1882, corresponding substantially with the provisions of Order XLV, Rule 13 of the present Code. In that case their Lordships were disposed to the view that the High Court was right in holding that it had no jurisdiction under the circumstances to appoint a receiver. In the judgment, we find the following observation: 'Their Lordships cannot direct the High Court to act where they have no jurisdiction, and they are not prepared to differ from the High Court on the question whether or not they have jurisdiction, without hearing full argument on the point. They are at present disposed to agree that the jurisdiction does not exist; and though it may be very anomalous that property should be left without the possibility of interim protection pending an appeal granted by special leave, the case is one of great rarity, and not unlikely to have escaped the notice of the framers of the Code.' They passed an order in that case for stay of proceedings on the ground that it was highly inconvenient that there should not be any interim protection at all pending such an appeal as this, and because while such a stay of proceedings can hardly be productive of injury to absent parties, the petitioner's counsel is sanguine that it may afford the requisite protection.' Accordingly they ordered a stay of proceedings. In view of this decision, we cannot interfere in the present application unless it be that Act V of 1908 has modified, in regard to such matters, the provisions of the former Code. We have examined carefully the provisions of Order XLV, which provides for appeals to His Majesty in Council and we see no reason for holding that the jurisdiction of the Court is thereby in any way enlarged.
2. This question came before a Bench of the Calcutta High Court in the case of Tega Singh v. Bichitru Singh 10 C.L.J. 326 : 4 Ind. Cas. 452 and the question is carefully discussed in the judgment of Mukerji, J. It was held that where after the refusal by the High Court to grant leave to appeal to His Majesty, special leave was granted by the Judicial Committee, the High Court had no power to entertain an application for the appointment of a receiver of the property in dispute under Rule 13, Order, XLV of the Code of Civil Procedure of 1908; that the changes introduced in the Code of 1908 do not affect the law as it stood in the Code of 1882. If the changes in the Code of 1908 do not affect the law as it stood under the former Code in respect of the appointment of a receiver under Rule 13, Order XLV, it is clear that these changes do not affect the law as it stood in respect of the power to stay execution of decree which comes under the same rule as the rule in regard to the appointment of a receiver. We do not see any reason for differing from the view expressed by Mukerji, J., in the case to which we have referred.
3. We may point out that the applicant in this case obtained special leave to appeal so long ago as July 1909. If he had been diligent, he might have applied for an order from the Judicial Committee, such as is now asked for in this Court.
4. For these reasons we reject the application with costs. The interim order will be discharged.