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Lakshmanan Chetty and ors. Vs. P.P.V. Palaniappa Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in45Ind.Cas.30; (1918)34MLJ470
AppellantLakshmanan Chetty and ors.
RespondentP.P.V. Palaniappa Chetty and ors.
Cases Referred and Rama Prasad v. Anukul Chandra
Excerpt:
- - manikkavasagam chetty (1912)23mlj677 .the inherent powers of the appellate court clearly recognised by order 41 rule 5 cannot be held to have been cut down or limited by the special and exceptional power conferred on the executing court by order 41 rule 6, which rule seems to have been clearly intended in order that the executing court might be compelled to exercise it in emergent cases for benefit of the judgment debtor......but another decree against the execution of which the decree under appeal refused to grant an injunction. the present petition is not for a temporary injunction but it is for stay of execution of the decree under appeal. the decree appealed against not being under execution, order 41, rule 5 does not apply, and this petition is misconceived. it is therefore dismissed with costs.
Judgment:
ORDER

1. As regards the preliminary objection that no petition under Order 41, Rule 5 of the Code of Civil Procedure lies in this court, in respect of stay of sale of immoveable property, Wallis, C.J. and Hannay, J. doubted in C.M. P. No. 1595 of 1914 (in A.A.O. No. 173 of 1914) the soundness of the decision in Kanniappan Chetty v. Manikkavasagam Chetty : (1912)23MLJ677 which was quoted in support of the objection. We are inclined to go further and dissent (with great respect) from the decision in Kanniappan Chetty v. Manikkavasagam Chetty : (1912)23MLJ677 . The inherent powers of the Appellate Court clearly recognised by Order 41 Rule 5 cannot be held to have been cut down or limited by the special and exceptional power conferred on the executing Court by Order 41 Rule 6, which rule seems to have been clearly intended in order that the executing court might be compelled to exercise it in emergent cases for benefit of the judgment debtor. (See also the pertinent observations of Mookerjee, J. in Tribeni Sahu v. Bhagwat Bux I.L.R (1907) . C. 1037 and Rama Prasad v. Anukul Chandra (1914) 20 C.L.J. 512 We overrule the preliminary objection.

2. On the merits it is not the decree under appeal that is sought to be executed by the sale of immoveable property but another decree against the execution of which the decree under appeal refused to grant an injunction. The present petition is not for a temporary injunction but it is for stay of execution of the decree under appeal. The decree appealed against not being under execution, Order 41, Rule 5 does not apply, and this petition is misconceived. It is therefore dismissed with costs.


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