(1) This petition for revision is directed against the order of this Sub-Judge 1st Class Sunam Dated 22nd August, 1964, where by the Sub-Judge refused the prayer of the judgment-debtor under O. 41 R. 6(2) of the Code of Civil Procedure. The prayer was that the sale be stayed on such terms as giving of security of otherwise as the Court may think it until appeal is disposed of.
(2) A decree for money was passed against the petitioners. Against that decree and unless there are very exception al reasons stay of money decree is not ordered. He further points out that Shrimati Nihal Kaur decree-holder is the widow and the other decree-holders are the sons of the decease Sahni Singh and they have no source of livelihood so that the ad interim stay order of this Court is operating the appellants could say in reply is that if the land of the judgment-debtors it is incumbent on them to satisfy it subject of source to the decision in the appeal. Mr. Agnihotri prays that in case deposit is made the decree-holders should not be allowed to withdraw the amount unless they furnish security for restitution to the satisfaction of the executing Court and with notice to the judgment-debtor appellants. I order accordingly. It the deposit of the decretal amount is not made within a mount the decree-holders will be entitled to take out execution. no order as to costs.'
In pursuance of this order the judgment-debtors could not deposit the decretal amount with the result that the execution was taken out in the executing Court. During the course of the execution the executing Court passed an order for sale of the property. After this order the judgment-debtors made an application under O. 41 R 6(3). That application has been disposed of the learned Sub-Judge by his order which is the subject-matter of this revision petition. The relevant part of this order reads thus:--
'................there is absolutely no occasion or reason for ordering the stay of the execution. If the stay is granted it would not be an unreasonable impediment on the decree-holder in the execution of his decree but it would also be in violation of the orders of the Hon'ble High Court. The application for stay is therefore not maintained and is hereby dismissed.'
It is against this decision that the present petitioners for revision has been preferred by the judgment debtors. The contention of Mr. D. C. Gupta learned counsel for the petitioners is that the learned Sub-Judge has filed to exercise jurisdiction vested in him by law in refusing to say the sale. It is contended that the order of the High Court did not stand in the way of learned Sub-Judge as to the prayer under Order 41 Rule 6(2). In order to properly appreciate the various decisions that have been given from time to time on this provisions it will be proper to set out the provisos of Order 41 rules 5 and 6. These provisions are:
'5. (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order not shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree. of an appeal having green preferred from the decree but the Appellate Court may for sufficient cause order stay of execution of such decree.
(2) Where an application is made for stay of execution of an appealable decree before the expiration of the item allowed for appealing therefrom the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied:--
(a) that substantial loss may result to the party applying for stay of execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
(4) Not with standing anything contained in sub-rule (3), the Court may make an ex pate order of stay of execution pending the hearing of the application.
6 (1) 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 in execution of the decree for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court or the Appellate Court may for like cause direct the Court which passed the decree to take such security.
(2) Where an order has been made for he sale of immovable property in execution of a decree the sale shall on the applications 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 if until the appeal is disposed of.'
So far as the provisions of Order 41 and 6(2) are concerned. there can be no dispute that the executing Court must on application of the judgment-debtor stay sale of immovable property of such terms as to giving of security or otherwise, until the appeal against the its decree is disposed of. The difficulty only arise in those cases where the judgment-debtor has gone up in appeal against the decree and had prayed for the stay of execution under Order 41 rule 5 and his prayer has been refused by the appellate Court. There is no direct authority of this Court or that of the Lahore High Court on this point.
What has been held in various cases which have arise under order 41, rule 6(2) was that it is incumbent on the executing Court to stay the sale in terms of Order 41, rule 6(2).
In firm Phallu Mal Hira Lal v. Banarsi Das, AIR 1924 Lah 631 it was held that
'the executing Court could not summarily reject the application under Order 41 rule 6(2). It was obligatory on the Court to say the sale on such terms as to giving security or otherwise as it thought fit.'
In firm Phaggu Mal Matta Din v. Banarsi Das, AIR 1924 Lah 671 another decision of the Lahore High Court by Moti Sagar J the learned Judge took the view that,
'an order refusing to stay a seal of immovable property in execution of a decree during the pendency of an appeal in the High Court under Order 41 rule 6(2) of the Civil Procedure code is appealable as a decree under S. 47 Civil Procedure Code.'
It was further held that the Court was bound to act under Order 41, rule 6(2) when an application was made by the judgment-debtor. In Shankar Das v. Kasturi Lal AIR 1925 Lah 69 Martineau J took the view that,
'the imposition of condition that the entire decretal amount should be deposited before the sale could be stayed under Order 41 Rule 6(2) was to defeat the very object of the rule therefore such a condition was against the spirit of the rule and could not be upheld.'
This view of the learned Judge did not find favour with the Madras High Court in P. c. Thirumalai goundar v. town Bank Ltd., Pollachi, AIR 1934 Mad 709 where the Division Bench of the Madras High Court took a different view. It has held in that case that the Court would impose such a condition. A similar view to that of the Madras High Court in AIR 1934 Mad 709 was taken by a Division Bench of the Calcutta High Court in Ram Nath Singh v. Raja Kamleshwar Prasad Singh 9 Ind Cas 323(Cal). In Gian Chand v. Manohar Lal, AIR 1929 Lah 68(2) Zafar Ali J. took the same view as was taken by Moti Sagar in the firm Phaggu Mal Mata Din's case AIR 1924 Lah 671. The learned Judge proceeded further and held that where the property had been sold but the sale had not been confirmed the provisions of Order 41 Rule 6(2) will still apply. The observations of Zafar Ali J. run counter to those of the Andhra Pradesh High Court in Yelamachili Satyanarayanamma v. Yelamanchili Nageswara Rao (1959) 2 Andh W R 439, wherein Sanjeeva Rao Nayudu J made the following observations:--
'***** There is a good deal of difference between the stage before the sale is held and the stage after the sale before the sale is held and the stage after the sale is held; for in the latter stage the rights of third parties would come in and there are bound to be other complications. It is for this reason that the sub-rule advisedly fixed the time when the application should be and that is when an order has been made for the date of immovable property. The learned Subordinate Judge is clearly worrying in thinking that the expression 'Order for sale' in Order 41, rule 6(2) Civil Procedure Code included the holding of the sale and the confirmation thereof.'
(3) As is apparent from what has been stated above none of these cases deal with the points that fall for determination this petition. Reference has also been made to Dhirendra Nath Roy. v. Sailah Kumar Bose AIR 1940 Cal 582 wherein the Division Bench of the Calcutta High Court took the view that 'where an order has been made for sale and an application under Order 41 Rule 6 has been made to Court the Court should stay the sale on suitable terms and the Court must consider what terms are suitable. The fact that the stay has been refused under Order 41 Rule 5 does not justify the Court in refusing to exercise the jurisdiction vested in it under Order 41, Rule 6.'
Reliance was placed upon Jiterndra Nath Choudhuri v. Bholanath Choudhury 44, Cal W N 701 for the above proposition. It was observed by Edgley J that 'although an application for stay for execution of a decree made under Order 41 rule 5(1) Civil Procedure Code may have been refused by the appellate Court still after an order for sale of immovable property in execution of the decree has been made the Court making such order has jurisdiction to an indeed must stay the sale on terms as to security or otherwise.'
(4) On the other hand in a decision of the Allahabad High Court in Har Narain Sahi v. Sadhu Govind Rai, ILR 54 All 874: (AIR 1932 All 551) it was observed that sub-rule (2) to rule 6 is only complementary to Rule 5. This decision was however adversely commented upon in Jugal Prasad Missir v. Jadubans Narayan Missir AIR 1941 Apt 483. While dealing with the Allahabad case Chatterji J observed as follows:
'With all respect to the leaned Judge I must say that this is against the express provision of the rule itself which says that the sale shall be stayed.'
Therefore, it will appear from what has been stated above that the only direct case on the point is of the Calcutta High Court in AIR 1940 Cal 582. There are certain observations in Yelamanchili Satyanarayanmma's case (1959) 2 Andh W R 439 which run counter to the view taken by the Calcutta High Court. But these observations are obiter because in that case an order under Order 41 Rule 6(2) was passed after the sale had been conducted and was pending confirmation. Therefore the stage from making an application under Order 41 Rule 6(2) has passed in that case and as observed therein the trial Court its confirmation. It appears to me that the rule laid down by the Calcutta high Court is the correct rule. The only exception I can see to it is where a sale has been ordered by the trial Court and an application is made to the appellate Court for stay of the sale and that application is rejected by the appellate Court. In such a situation the rule in the obiter observation of the learned Judge of the Andhra Pradesh High Court in Yelamandhili Satyanaryanamma's case (1959) 2 And W R 439 will hold good.
(5) Mr. Puran Chand learned counsel for the respondent contended that the order of Capoor J. refusing stay under Order 41 Rule 5, Civil Procedure Code finally concluded the matter. This argument loses sight of the fact that no order for sale had been made when the High Court dealt with the matter. Therefore it cannot be said that the High Court was seized of the matter which fell for decision by the trial Court on the judgment-debtor's application under Order 41 Rule 6(2) or that on the same matter there is a decision by the appellate Court by reason of which the trial Court will be precluded form acting under Order 41 Rule 6(2). In the present case it was open to the trial Court to consider the application of the judgment-debtor's on the ground that the matter had been settled by this Court. As there has been a denial of jurisdiction by the trial Court to decide the matter I would in the exercise of my jurisdiction under S. 115 Civil Procedure Code allow this petition quash the impugned order and direct the trial Court to decide the trial Court to decide the application of the judgment-debtors under Order 41 Rule 6(2) on merits. Costs will be cost in the main execution application.
(6) Parties are direct d to appear before the trial Court on 14th December 1964.
(7) Petition allowed.