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Babu HarnaraIn Sahi Vs. Sadhu Govind Rai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All551
AppellantBabu HarnaraIn Sahi
RespondentSadhu Govind Rai
Excerpt:
- - in short, after hearing counsel on both sides i am not satisfied that there is sufficient reason for the stay of the sale under rule 5, order 41. 3. the suggestion was made that the sale could be stayed under clause (2), rule 6, order 41. as the interpretation of this rule has on some occasions given some difficulty, i have considered the matter somewhat carefully.orderkendall, j.1. this is an application under order 41, rule 5, civil p.c., for stay of execution proceedings. it is made on the ground that the judgment-debtor entered into a compromise with the decree holder to the effect that the latter should execute his decree aginst the villages of singha and mahesra, which were said to be free from encumbrance; and that if any encumbrance were discovered on these villages the decree-holder should proceed against the villages of pakaryar and sorha. the decree-holder has however proceeded against these two latter villages on the allegation that village singha had an encumbrance on it. on the question of whether there is an encumbrance on this village the two lower courts have decided that there is, but a second appeal is pending.2. the applicant.....
Judgment:
ORDER

Kendall, J.

1. This is an application under Order 41, Rule 5, Civil P.C., for stay of execution proceedings. It is made on the ground that the judgment-debtor entered into a compromise with the decree holder to the effect that the latter should execute his decree aginst the villages of Singha and Mahesra, which were said to be free from encumbrance; and that if any encumbrance were discovered on these villages the decree-holder should proceed against the villages of Pakaryar and Sorha. The decree-holder has however proceeded against these two latter villages on the allegation that village Singha had an encumbrance on it. On the question of whether there is an encumbrance on this village the two lower Courts have decided that there is, but a second appeal is pending.

2. The applicant states in para. 12 that he will suffer an irreparable injury and may have to pay substantial compensation if the villages of Sorha and Pakaryar are sold. This is explained by the allegation that he has entered into a deed of partition with his wife and son by which they become the owners of these two villages. Apart from this there is nothing to show why he should suffer any more substantial loss by the sale of these two particular villages than of the others which he is willing to offer for sale. If he really has transferred the villages of Sorha and Pakaryar to his wife and son, he may have to pay compensation to them under some private arrangement, but will himself be compensated by escaping from the liability that would attach to his own villages. Moreover, if the villages have been transferred it is difficult to see on what principle the judgment-debtor can come into Court and object to their sale. The proper remedy would be for the transferees to make an objection under Order 21, Rule 58, Civil P.C. In short, after hearing counsel on both sides I am not satisfied that there is sufficient reason for the stay of the sale under Rule 5, Order 41.

3. The suggestion was made that the sale could be stayed under Clause (2), Rule 6, Order 41. As the interpretation of this rule has on some occasions given some difficulty, I have considered the matter somewhat carefully. Clause (2), Rule 6 reads as follows:

Where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor 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,

and Rule 8 of the same order provides:

The powers conferred by Rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree as is the case here.

4. If this rule is to be interpreted to mean that in every case where an order has been made for the sale of immovable property in execution of a decree from which an appeal is pending the executing Court is obliged to stay the sale on the application of the judgment-debtor, then the present application might succeed on the ground that the High Court will have jurisdiction to pass an order that ought to have been but has not been passed by the executing Court.

5. Rules 5 to 8, Order 41, are the rules covering stay of proceedings and of execution, and the marginal notes to Rule 5 show that that is the rule that is applied to stay of proceedings and of execution, while the marginal notes to Rule 6 show that that is the rule that is applied to security. Clause (1), Rule 6, shows that where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken (from the decree-holder executing the decree) for restitution. Clause (2) shows that where an order has been made for the sale of immovable property in execution of a decree for which an appeal is pending, the sale shall be stayed on the application of the judgment-debtor to the Court which ordered the sale, 'on such terms as to giving security or otherwise as the Court thinks fit.' The attention of the legislature seems in both these clauses to have been directed to the manner in which security should be demanded, and as the rule immediately follows Rule 5, which prescribes the manner in which execution proceedings may be stayed, the whole of Rule 6 must, I think, be held to be complementary to Rule 5, providing in fact an explanation of the word 'security' which has been used in Clause (c), Sub-rule (3), Rule 5. I am not therefore of opinion that Clause 2, Rule 6 was intended to impose on the Court which ordered the sale an obligation to stay the sale merely because the property which is to be sold is immovable property. The result is that the present application fails and is dismissed with costs.


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