1.This is an application for an ad interim order of stay of execution in an appeal against an order of the District Judge, Alwar, of 26-4-1954, dismissing an application of the appellant for restoration of his appeal which was dismissed for default on 6-7-1953.
2. The facts of the case are that Chiranjilal and Ram Singh obtained a decree in-a preemption suit on 7-4-1952, by which on payment of the sale price they were allowed to purchase the property sold by Dulichand to Bhonreylal.
3. The defendant Bhonrey Lal filed an appeal against the decree of the first court in the court of the District Judge, Alwar, which was fixed for hearing on 6-7-1953. The appellant failed to appear on that date and the appellate court dismissed the appeal for default of appearance. A restoration application was filed by the appellant but it was dismissed on 26-4-1954.
Bhonrey Lal has filed an appeal against the order of the District Judge, Alwar, of 26-4-1954, & has also moved an application for stay of execution of the decree passed by the Civil Judge. On 28-5-54 after admitting the appeal a rule was issued to the opposite party to show cause why the execution of the decree be not stayed pending the decision of the appeal and meanwhile execution proceedings were stayed.
A reply has been filed on behalf of Ram Singh respondent and it has been alleged that the appellant has purchased 3 other shops at Alwar and can conveniently carry on his business in those shops. It has further been stated that no irreparable loss would be caused to the appellant if the execution of the decree is not stayed.
4. On behalf of the appellant it has been stated by Mr. Rastogi that the shops purchased by the appellant are located in the main market at Alwar and according to the rules of the municipality he cannot be allowed to carry on his business of bakery in that locality and it is, therefore, very necessary for him to continue in occupation of the suit premises in order to enable him to make his living by means of his business of bakery.
It is further urged that as the appellant has created a goodwill in the locality of the suit premises, it would be detrimental to his Interest to shift his business to some other place during the pendency of this appeal. The decree of the court being contrary to the principles laid down by the judgment of this court in -- 'Panch Gujar Gaur Brahman v. Amar Singh', AIR 1954 Punj 100 (PB) (A), it is further contended, is contrary to law.
5. A preliminary objection was raised on. behalf of the respondent that no order for stay of the execution of the decree under Order 41, Rule 5 can be made in favour of the appellant in this case because this case relates to an appeal against an order only and the decree which is being executed does not form part of the pub-ject-matter of this appeal. Reliance is placed on the decision in -- 'Mohan Lal v. Shibdhari Chaube', AIR 1942 Pat 146 CB).
In that case an ex parte mortgage decree was obtained by the plaintiff which subsequently became final. The defendants made an application to the court under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree, but it was dismissed. An appeal was preferred to the court of the District Judge and an application to stay the sale of the mortgage property in execution of the decree was moved.
The District Judge granted the petition and made an ad interim order of stay but unfortunately before that order could be communicated to the first court the property was sold and subsequently the sale was confirmed, and possession was also delivered. The judgment-debtors then applied in the court of the Munsiff for setting aside the sale on the ground that the court had no jurisdiction to sell the property while there was a stay order passed by the appellate court.
The matter finally went up to the High Court of Patna and it was held that the appellate court in an appeal from an order dismissing an application to set aside an ex parte decree had no jurisdiction to stay the execution of that decree, though it could under Order 41. Rule 5 stay the execution of an order of costs. Decisions in -- 'Bhagwat Rajkoer v. Sheo Gholam Snhu', 31 Cal 1081 (C) and -- 'Jamuna Prasad v. Magai Ram', AIR 1916 Pat 397 (D) were relied on.
It is argued by the learned counsel of the respondent that the appellant in the present case cannot obtain a stay order under Order 41, Rule 5 as the decree which is being executed has not been appealed against and the order against which this appeal has been filed relates only to the dismissal of an application for restoration.
6. It may be noted that the case in 'Mohan Lal v. Shibdhari Chaube (B)' related to an appeal from an order dismissing an application for setting aside an ex parte decree and an appeal lay against the decree itself but no such appeal had been filed. It is argued that the principle laid down in 'Mohan Lal Mahto's case (B)' is equally applicable to a case of an appeal against an order rejecting a restoration application.
No decision on the point has been cited by the learned counsel of the opposite party of a case relating to an appeal from an order rejecting a restoration application. The decision in 'Mohan Lal Mahto's case (B)', however, can be distinguished on the ground that in that case an appeal lay against an ex parte decree whereas it was not so filed. In a case for restoration of an appeal no such opportunity is available to the appellant.
7. In order to appreciate the real position it is necessary to go into the powers of the lower appellate court itself. After dismissal of an appeal for default and after entertaining an application for its restoration it is open to that Court to stay the execution proceedings under Order 21, Rule 26 read with Section 107, Civil P. C. Order 21, Rule 26 provides that the court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution, which might have been made by such Court of first instance or appellate Court if execution had been issued thereby, or if application for execution had been made thereto.
Section 107 lays down the powers of an Appellate Court and Sub-section (2) provides that subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. It is evident that the powers of an appellate court are co-extensive with those of an original court.
Under Order 21, Rule 26 an original court can stay the execution of a decree in the circumstances specified in that Rule. The lower appellate court, therefore, after dismissal of the appeal for default, till the restoration application could be finally disposed of, could grant a stay of execution of the decree. In an appeal from an order of dismissal of restoration application the same powers are available to the appellate court as were held by the lower Court whose order is subject to appeal.
The powers of this Court as specified in Section 107, C. P. C. are the same as those of the lower appellate court and when, as discussed above, the lower appellate court could stay execution of the decree during the pendency of the restoration application, it is open to this court to allow stay of the execution during the pendency of the appeal.
8. The learned counsel of the appellant has also referred to a decision of the Allahabad High Court in -- 'Janki Das v. Sheo Prasad', AIR 1932 All 238 (E) in which it has been held that the provision in Order 41, Rule 5 is not exhaustive and it is open to an appellate court to stay execution of a decree under Section 151 in exercise of its inherent powers.
It may be noted that Section 151 can be invoked only in cases where there is no clear provision in the Civil Procedure Code. As has been discussed above Section 107 read with Order 21, Rule 26 is applicable in the circumstances of this case and a stay order can be made under those provisions. It is, therefore, not necessary to have resort to the extraordinary powers of this court unden Section 151, C. P. C.
The principle laid down in 'Mohan Lal v. Shibdhari Chaube (B)' is not applicable to this case as it is not a case of an appeal against an order rejecting an application for setting aside an ex parte decree in which case it is open to a party to file an appeal against the ex parte decree itself. Moreover, in that case the provisions of Order 21, Rule 26 read with Section 107, Civil P. C. were not examined and no opinion was expressed in that behalf.
9. Reference may be made to the decisions in -- 'Pashupati Nath v. Nanda Lal', 28 Cal 734 (F) wherein it has been held that when an appeal is filed against an interim order passed in execution of a decree it is open to the appellate court to order stay of the execution of the decree itself. It was observed by Banerjee J, in that case that
'the appellate court has the power to stay execution in the same manner as the First Court, if the First Court had such power; and that the First Court has the power to stay execution of a decree is clear from Clause (c) of Section 244, Civil P. C.'
10. The objection that this court has no power in this appeal to grant stay of execution is, therefore, disallowed and it is held that though no such order of stay can be made under Order 41, Rule 5, an order of stay of execution can be made under Section 107 read with Order 21, Rule 26, Civil P. C.
11. As regards the reply of the respondent it may be noted that the contention of the appellant is that he is carrying on the trade of bakery on the suit land which it is not possible for him to shift to the other 3 shops subsequently acquired by him. It cannot, under these circumstances, be held that no irreparable loss would be occasioned to the appellant if stay is not granted.
It will certainly hinder the carrying on of the business of the appellant if stay of the execution of the decree is not allowed and he is made to shift his business to some other locality during the pendency of the appeal. The Full Bench decision of this Court in 'Panch Gujar Gaur Brahman v. Amur Singh (A)' referred to by Mr. Rastogi also supports the case of the appellant in disclosing a prima facie case for stay.
12. The learned counsel of the respondent has further prayed that a security in cash may be taken from the appellant for any loss that might be occasioned to the respondent on account of delay in execution of the decree. Mr. Rastogj on behalf of the appellant is prepared to furnish cash security in an amount of Rs. 100/-.
The stay order is, therefore, confirmed to last till the decision of this case subject to the condition that the appellant deposits an amountof Rs. 100/- by way of security in this court forany loss or damage that may arise to respondent on account of delay in the execution of thedecree in the event of this appeal remainingunsuccessful.