(1) The facts relevant to this application under Order XLV Rule 13 and other provisions of the Civil Procedure Code are that on the 10th of October 1960 Piarey Lal Kapani obtained a decree against respondent Basheshar Nath for Rs. 1,96,080/- and costs on the basis of a pronote. The defendant filed a regular first appeal in this Court which was decided on the 8th of December 1961 by G. D. Khosla, C. J. and Bedi, J. who accepted the appeal and dismissed the plaintiff's suit.
(2) Against this order Piarey Lal Kapani has filed an application under Article 133(1) (a) and (b) of the Constitution for leave to appeal to the Supreme Court, and there is no doubt that since the amount directly involved throughout is considerably in excess of Rs. 20,000/- and the decree of this Court was one of reversal, the leave to appeal will be granted as of right.
(3) What we are concerned with in the application is a sum of 2,15,000/- which had been deposited during the pendency of the appeal in the lower Court as a condition of stay of execution. The plaintiff whose appeal was dismissed by this Court now seeks an order restraining the defendant-respondent from withdrawing the amount lying in the lower Court pending the decision of the appeal by the Supreme Court on grounds which may be summed up as being that if the amount is withdrawn the plaintiff will be unable to execute his decree in the event of his succeeding in the Supreme Court because of the unsound financial position of the respondent such of whose properly as he has not already sold during the pendency of the suit is heavily encumbered.
(4) The dismissal of the plaintiffs suit by this Court in appeal has left the parties in the position in which they were as the time when the suit was first instituted, and it is difficult to see how this Court can pass such as order as that sought on the plaintiff's behalf. His learned counsel has taken his stand on the provisions of Order XLV, Rule 13(2)(d) of the Code Rule 13 reads:
'(1) Notwithstanding the grant of a certificate for the admission of any appeal the decree appealed from shall be unconditionally executed, unless the Court otherwise directs. (2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit or otherwise appearing to the Court,--
(a) impound any moveable properly in dispute or any party thereof, or
(b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fir for the due performance of any order which the Supreme Court may make on the appeal, or
(c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fir for the due performance of the decree appealed from, or of any decree or order which the Supreme Court may make on the appeal, or
(d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal as it thinks fir, by the appointment of a receiver or otherwise.'
(5) In the present case with the dismissal of the plaintiff's suit by this Court there is no decree of which the execution is either to be stayed or permitted under (b) or (c), and even under (d) no question arises of any party seeking the assistance of the Court being placed under conditions. It is, however, contended that the words 'or give such other direction respecting the subject-matter of the appeal as it thinks fit' are independent of the words 'any party seeking the assistance of the Court' and that under this provision the Court can direct that the defendant-respondent be restrained from withdrawing the amount now lying in the lower Court. Although, however, the plaintiff's suit was for a sum of money, I do not consider that the particular sum of money in the form of currency notes which happens to be lying in the lower Court can be considered to be the subject-matter of the appeal.
(6) Apart from this the authorities appear to be against the petitioner in this matter. In Rajahmundry Electric Supply Corporation Ltd. v. State of Madras, AIR 1953 Mad 475, Rajamannar C. J. and Satyanarayana Rao, J. held that Order XLV, Rule 13(2)(d) only enables the High Court to place the party seeking the assistance of the Court under any conditions which the Court may think fir to impose and also enables the Court to give such other direction, that is to say, direction other that a direction placing under any condition respecting the subject-matter of the appeal, such as for instance, by an order directing the appointment of a receiver but it does not enable the Court to give any direction to the successful party by way of restricting or preventing him from exercising the rights to which he had become entitled under the final order.
This decision was accepted as correct and followed by J. L. Kapur, J. and myself in Sarup Lal v. Sm. Kaushalya Devi, AIR 1956 Punj 225, in a case in which in respect of a dispute about land this Court had accepted a petition under Article 226 of the Constitution and the aggrieved party had obtained leave to appeal to the Supreme Court, but had then applied under Order XLV, Rule 13 praying that the operation of the order of the High Court be suspended and the opposite party restrained from alienating the property in dispute in the meantime. It was held that the prayer of the petitioner was not covered by Order XLV, Rule 13 (2)(d).
(7) In that case at least the land in dispute could be regarded as the subject-matter of the appeal to the Supreme Court whereas, as I have said, in the present case particular sum of money lying in the lower Court cannot even be said to be the subject-matter of the appeal to the Supreme Court. I would accordingly dismiss the application, but leave the parties to bear their own costs.
Mehar Singh, J.
(8) I agree.
(9) Application dismissed.