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Ram Katori and anr. Vs. M. Shafiq Ahmad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All732; 147Ind.Cas.178
AppellantRam Katori and anr.
RespondentM. Shafiq Ahmad and anr.
Excerpt:
- .....a mortgage-deed and a first appeal has been taken against that preliminary decree. subsequently a final decree had been prepared for sale and the decree-holders applied for execution of this final decree. the order in question is that as an appeal was pending from the preliminary decree and further property in addition to the mortgaged property had been attached by the decree-holders, the sale should not be allowed, and the execution application for sale was dismissed with costs. a preliminary objection was taken that no appeal lay. as the order definitely states that the execution application is dismissed, we consider that it is an order under section 47, civil p.c., and an appeal does lie. the proper procedure for the execution court would be to act under the. provisions of order 41,.....
Judgment:

Bennet, J.

1. This is an execution first appeal by the decree-holders against an order of the execution Court dismissing the application for execution by sale of mortgaged property. The facts are that there was a preliminary decree for sale on a mortgage-deed and a first appeal has been taken against that preliminary decree. Subsequently a final decree had been prepared for sale and the decree-holders applied for execution of this final decree. The order in question is that as an appeal was pending from the preliminary decree and further property in addition to the mortgaged property had been attached by the decree-holders, the sale should not be allowed, and the execution application for sale was dismissed with costs. A preliminary objection was taken that no appeal lay. As the order definitely states that the execution application is dismissed, we consider that it is an order under Section 47, Civil P.C., and an appeal does lie. The proper procedure for the execution Court would be to act under the. provisions of Order 41, Rule 6, Sub-rule (2). That rule states that the Court may stay execution

on such terms as to giving security or otherwise as the Court thinks fit until an appeal is disposed of.

2. It was however argued that there is no appeal against the final decree. The language used in the sub-rule is 'and an appeal is pending from such decree.' We consider however that the sub-rule will apply, because if the appeal is allowed, not only that the preliminary decree will be set aside but the final decree will also be set aside. This no doubt is giving an extension to the literal meaning of the words quoted. But we consider that by implication those words must be taken to govern the present case. A final decree is based on a preliminary decree and contains within itself the adjudication between the parties which has already been made in the preliminary decree and to that extent an appeal against a preliminary decree is also by implication an appeal against a final decree, although it is not an appeal in express terms against a final decree.

3. We consider that the order of the execution Court is not correct in dismissing the execution application as Order 41, Rule 6, Sub-rule (2) onlyempowers the Court against whose decree an appeal is pending to stay the application for execution and not to' dismiss, it. And the order of costs is not justified. Accordingly we allow this appeal to this extent: that we set aside the order of the lower Court dismissing the execution application with costs and instead we grant an order for stay of the execution application and we direct that that stay will be granted on such terms as to giving security or otherwise as the lower Court thinks fit, having regard to the terms of Order 41, Rule 6, Sub-rule (2). We make this order because it has been brought to our notice that by an order of this Court dated 10th November 1932 the order of attachment of property other than the mortgaged property has been somewhat modified and it is necessary for the lower Court to enter into this question again. We make no order as to costs.


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