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H.S. Vodayar Vs. the Vijaya Bank Ltd. by Its Secretary B. Mahabala Shetty and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 753 of 1949 and C.M.P. Nos. 3805 and 4693 of 1949
Judge
Reported inAIR1951Mad321; (1950)2MLJ492
ActsCode of Civil Procedure (CPC) , 1908 - Sections 94 and 151 - Order 21, Rules 58, 58(2) and 63
AppellantH.S. Vodayar
RespondentThe Vijaya Bank Ltd. by Its Secretary B. Mahabala Shetty and anr.
Appellant AdvocateB. Pocker and ;A. Atchuthan Nambiar, Advs.
Respondent AdvocateS. Ramayya Nayak, Adv.
Cases ReferredAhmed Abdul Sukkoor v. Vallabhadas Kanji Firm
Excerpt:
- - 1. this revision petition raises an interesting question of law, namely, whether a mofuasil court can under section 94(e), civil p. in cases like these, to grant a stay of execution or sale on terms calculated not to injure the interests of the decree-holders. a court of justice, equity and good consciencemust have powers to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the court, under section 151, civil p......of of 1948, under order 21, rule 58, civil p. c. that petition was dismissed. thereupon he filed a claim suit (o. s. no. 84 of 1949) under order 21, rule 63, civil p. c. for staying the sale of the printing machinery attached under the decree in o. s. no. 371 of 1943 pending the disposal of o. s. no. 84 of 1949 on such terms as the lowercourt deemed fit. the lower court considered that it had no jurisdiction to stay the execution of the decree or sale under section 94(e) or section 151, civil p. c. or order 21 rule 58 (2). civil p. c., and dismissed the application. hence, this revision petition. rajagopalan j. granted interim stay of all further proceedings in execution of the decree in o. s. no. 371 of 1948, on 31-5.1949, in c. m. p. no. 3906 of 1949, filed by the petitioner, vodayar,.....
Judgment:
ORDER

Panchapakesa Ayyar, J.

1. This revision petition raises an interesting question of law, namely, whether a mofuasil Court can under Section 94(e), Civil P. C., or Order 21, Rule 68 (2), Civil P. C., or Section 151, Civil P. C., stay a sale in execution of a decree in a suit against a third party pending the disposal of a suit filed under Order 31, Rule 63, Civil P. C., by a claimant to the properties brought to sale against the claim order.

2. The petitioner, Vodayar, claimed one machine of a printing press attached by the Vijaya Bank, respondent 1, as belonging to respondent 2, the Badavara Bandhu Press, the judgment-debtor in O. S. No. 371 of 1943 on the file of the District Muusif, Mangalore, to be his, and filed a claim petition, R. I. A. No. 1266 of of 1948, under Order 21, Rule 58, Civil P. C. That petition was dismissed. Thereupon he filed a claim suit (O. S. No. 84 of 1949) under Order 21, Rule 63, Civil P. C. for staying the sale of the printing machinery attached under the decree in O. S. No. 371 of 1943 pending the disposal of O. S. No. 84 of 1949 on such terms as the lowerCourt deemed fit. The lower Court considered that it had no jurisdiction to stay the execution of the decree or sale under Section 94(e) or Section 151, Civil P. C. or Order 21 Rule 58 (2). Civil P. C., and dismissed the application. Hence, this revision petition. Rajagopalan J. granted interim stay of all further proceedings in execution of the decree in O. S. No. 371 of 1948, on 31-5.1949, in C. M. P. No. 3906 of 1949, filed by the petitioner, Vodayar, C. M. P. No. 4693 of 1949 is filed by the Vijaya Bank to vacate the interim stay.

3. I have perused the entire records and heard the learned counsel on both sides. The learned counsel for the petitioner urged before me that a claim suit has been held in Krishnappa Chetti v. Abdul Khader Sahib, 26 M. L. J. 449 : A. I. R.1915 Mad. 495, to be only a continuation of a claim petition, and that a stay of sale can be granted, under Order 21, Rule 58 (2), Civil P. C. and Section 94(e) and 161, Civil P. C., on suitable terms not only in a claim petition but also in its continuation in a claim suit, as the sale is only postponed 'pending the investigation of the claim or objection' in detail in the claim suit. I agree. Even if Order 21, Rule 58(2), Civil P. C. and Section 94(e), Civil P. C. do not apply, I think that the Court will have ample power under Section 151, Civil P. C. in cases like these, to grant a stay of execution or sale on terms calculated not to injure the interests of the decree-holders. The lower Court was in my opinion, wrong in saying, 'The execution of a decree cannot be stayed under Section 151, Civil P. C.' The rulings in Ankalu Reddi v. Chinna Ankalu Reddi, : AIR1944Mad161 , Ahmed Abdul Sukkoor v. Vallabhadas Kanji Firm : (1949)2MLJ645 , Galastaun v. Dinsha, 31 C. W. N. 653 : A. I. R. 1927 Cal. 681, Fitzholmes v. Waryam, A. I. R.1923 Lah. 514 ; 76 I.C. 419, Bhagwan Kaur v. Harnam, 149 P. L. R. 1910 : 82 P. R. 1910 and Hirambho v. Sarojini, : AIR1932All665 , showthat the Court has got a power to order stay of execution, though within narrow limits, under Section 151, Civil P. C. also. The ruling in Ahmed Abdul Sukkoor v. Vallabhadas Kanji Firm, : AIR1950Mad219 , shows that this power extends also to the Mofussil Courts, and I too agree. Varada-charyulu v. Narasimhacharyulu : AIR1926Mad258 , relied on by the learned counsel for respondent, cannot be preferred, in my opinion, to these rulings, especially when we are concerned with a prayer for stay of sale in a claim petition which is a continuation of the suit, and Order 21, Rule 58 (2), Civil P. C. and Section 94(e), Civil P. C. also will apply. A Court of justice, equity and good consciencemust have powers to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court, under Section 151, Civil P. C. If, for instance, an attached family heirloom, or elephant or gem or painting, having a great sentimental value for the claimant, is to be sold while his claim suit against a claim order is pending, it may become impossible for the claimant to recover it, and there will be great injustice caused to the claimant, if he eventually succeeds in his suit. That will apply also to many other cases. After all, the decree-holder is concerned, as the learned counsel for the decree-holder frankly admitted in this case, only with safeguarding his own interests. The learned counsel for the respondent decree-holder said that the printing machinery in question will deteriorate and come down in value, it not sold at once, and that if stay of sale is granted, there must be provision made not only for the continuation of the attachment of this machinery but also for providing immovable property security for Rs. 1,500 (the decree is for some thousands) in order to safeguard his interests against depreciation etc. I consider this request to be proper.

4. I, therefore, set aside the order of the lower Court refusing stay of this sale, and pass a conditional order of stay of sale, under Order 21, Rule 58 (2), Civil P. C., and Ss. 94 (e) and 151, Civil P. C. In case the petitioner furnishes immovable property security for Rs. 1,500 to the satisfaction of the learned District Munsif, Mangalore, by 3 p. m. on 15-10-1950, to provide for possible injury to the decree-holder by staying the sale, the petition will be allowed without costs, and stay of sale will issue, and the attachment of the machinery will continue; but, if the petitioner fails to furnish the said security by the sale date, this petition will stand dismissed with costs. C. M. P. No. 4693 of 1949 is dismissed without costs. No orders are necessary in C. M. P. No. 3806 of 1949 which is closed without any orders as to costs.


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