Kuppuswami Ayyar, J.
1. The petitioner, the first defendant in O.S. No. 6 of 1942 on the file of the District Court of Cuddapah seeks to have the passing of the final decree in that suit stayed pending disposal of C.M.A. No. 369 of 1943 filed against the order in I.A. No. 17 of 1943 dismissing his application for setting aside the ex parte preliminary decree passed in that suit. It was a suit for recovery of money due on a hypothecation deed.
2. The main contention of the respondent is that the application is not maintainable and that this Court has no jurisdiction to stay the passing of the final decree.
3. The petition has been filed under Order 41, Rule 5 and Section 151 of the Civil Procedure Code. Order 41, Rule 5 runs thus:
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, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate Court may for sufficient cause order stay of execution of such decree.
4. The rule as amended in Madras has the following additional provision:
and may when the appeal is against a preliminary decree stay the making of a final decree in pursuance of the preliminary decree or the execution of any such final decree if already made.
5. On the language of the rule as it stands the petitioner cannot be given the relief prayed for as the appeal is only against an order refusing to set aside the preliminary decree.
6. In a case reported in 32 L.W. Short Notes 41 (C.M.P. No. 3754 of 1930) it was held by Lakshmana Rao, J., that in similar cases, since there is no appeal against the ex parte decree the application for stay of further proceedings in pursuance of the decree cannot be entertained in a civil miscellaneous appeal against an order refusing to set aside an ex parte preliminary mortgage decree. He followed the decision of Jackson, J., in C.M.P. No. 3871 of 1929 (57 M.L.J. Short Notes 44).which was a similar case. In the latter case the decision in Bhagwat Rajkoer v. Sheo Golam Sahu I.L.R.(1904) Cal. 1081 was referred to and followed. That decision of the Calcutta High Court was based on the express language of Section 545 of the Civil Procedure Code corresponding to Order 41, Rule 5 of the present Code, and it was held that it was not competent to an appellate Court to stay proceedings in execution of a decree of a Subordinate Court pending an appeal preferred against an order of refusal of the Court below to set aside the decree under Section 108 of the old Code of Civil Procedure (Order 9, Rule 13 of the present Code). The decision in Jamuna Prasad v. Magai Ram A.I.R. 1916 Pat. 397 follows the decision in Bhagwat Rajkoer v. Sheo Golam Sahu I.L.R.(1904) Cal. 1081 and refers to it as sufficient authority for the position that there is no power vested in the appellate Court to stay proceedings in a case such as this. In Mohan Lai v. Shibdhari : AIR1942Pat146 also it was held that an order staying execution of a decree under such circumstances was one passed without jurisdiction. Reference was made in it to the decision in Bhagwat Rajkoer v. Sheo Golam Sahu I.L.R.(1904) Cal. 1081 and to that in Jamuna Prasad v. Magai Ram A.I.R. 1916 Pat. 397 as authority for the position. That decision also, was giyen with reference to the express language of Order 41, Rule 5.
7. In none of these cases was the question considered as to whether such an order could be passed irrespective of Order 41, Rule 5 in exercise of the inherent powers of the Court under Section 151 of the Civil Procedure Code. As urged for the petitioner even before the present Code of 1908 came into force it had been recognised that Courts in India had inherent powers ex debito justitiae which could be invoked in such cases, and under the Code of1908 it has received legislative recognition in Section 151. In Hukum Chand Boid v. Kamalanand Singh I.L.R.(1905) Cal. 927 Mookerjee, J., after referring to the decision in Panchanan Singh Roy v. Dwarkanath Roy (1905) Cri.L.J. 29 observed:
The provisions of the Civil Procedure Code cannot be treated as exhaustive. I entirely repudiate the theory that our powers are rigidly circumscribed by the provisions of the Code, and that we have no power to make a particular order, though it may be absolutely essential in the interest of justice, unless some section of the Code can be pointed out as a direct authority for it. Such a theory is based on a misconception of the true functions of a Code, as to which reference may usefully be made to a well-known passage from Domat's Civil Law.... Such a theory, moreover, is entirely inconsistent with various decisions of the Judicial Committee and of the different High Courts in this country, among which 1 need only mention those in the cases of Ram Kirpal v. Rup Kuari (1883) L.R. 11 IndAp 37 : I.L.R. 6 All. 269 (P.C.)
8. It is true that such inherent powers cannot be invoked by any Court when the exercise of such powers would be inconsistent with or opposed to the express provisions of the Code. But where the Code is silent I should think such powers can be exercised so long as it is not opposed to or prohibited by the provisions of the Code and it relates to matters on which the Code cannot be said to be exhaustive. There is also one other limitation to the exercise of such powers which was pointed out in Petha Perumal Chettiar v. Chidambaram Chettiar : AIR1927Mad592 in the following observation:
We think it is an improper use and an erroneous construction of Section 151 to invoke it for power which can be found in other provisions of the Code.
9. In Ayyamperumal v. Muthuswami : AIR1927Mad687 , which followed the decision in Varadacharyulu v. Narasimhacharyulu (1935) 23 L.W. 85 it was pointed out that the Code is exhaustive in respect of matters for which provision is made and that Section 151 cannot be invoked in opposition to the provisions of the Code. But in these two cases the provisions of Section 151 were sought to be invoked for the power to the Court to issue temporary injunctions in circumstances not provided in Order 39, Rule 1. It was pointed out that the Courts were empowered to issue temporary injunctions only under Section 94 of the Code, and under that section it is only in cases prescribed, namely, prescribed by rules vide Section 2(16) of the Civil Procedure Code that temporary injunctions could be issued. Since thus there is a definite provision in the Code limiting the circumstances in which temporary injunctions could be issued by the Court, the Court could not act under Section 151 of the Civil Procedure Code. It follows that in matters in which the Code is exhaustive the inherent power of the Court under Section 151 cannot be invoked.
10. Another set of rulings relied on for the respondent in support of his contention that Section 151 cannot be invoked relate to the power of the Court to restore suits under circumstances not contemplated by Order 9, Rule 13 or to restore applications dismissed for default. In Neelaveni v. Narayana Reddi : (1919)37MLJ599 a Full Bench of this Court had to consider the maintainability of a petition to set aside a decree or order passed in default of appearance on grounds other than those given in Order 9, Rule 13 and it was held that Section 151 cannot be invoked for any inherent powers to order restoration. It was pointed out that if the Code provides a special remedy, the remedy cannot be extended to cases other than those mentioned in the Code. The decision in Hukum Chand Boid v. Kamalanand Singh 1 was referred to with approval as regards the inherent powers of the Court. It was stated that there was no instance of any ex parte decree having been set aside on an application made for that purpose in cases other than those coming under Rule 13 of Order 9. It was further emphasised that most of the cases where the Court exercised its inherent powers related to orders of an incidental or ancillary character. The decision in Alagasundaram Pillai v. Pichuvier : (1929)57MLJ381 , which was also a decision of a Full Bench relates to a case of an application to set aside an order of dismissal for default passed in proceedings under Rule 97 or 100 of Order 21 of the Civil Procedure Code. It was pointed out in that case that the inherent power so far as it exists is itself a matter of statute and reference was made to Section 151. It was further pointed out that the exercise of such power may be justified in cases of gross injustice where the party has no other remedy and that in that particular case there was a remedy by way of suit. In the case of applications for restoration of proceedings and suits for default of appearance in circumstances other than those coming within the purview of Order 9, Rule 13, the granting of the relief prayed for would interfere with the substantial rights of parties acquired under such orders. With regard to applications for stay of further proceedings the order prayed for being only incidental or ancillary cannot be said to materially affect the substantial rights of parties.
11. With regard to the power of the Court to stay further proceedings or proceedings in execution under Section 151 of the Code of Civil Procedure no authority has been cited to indicate that the provision of the Code has been considered to be exhaustive on that point. On the contrary there are a number of rulings of the various High Courts in which the inherent powers of the Court under Section 151 had been invoked for staying further proceedings in pursuance of a decree or order as also proceedings in execution. In Hukum Chand Boid v. Kamalanand Singh I.L.R.(1905) Cal. 927 are given various instances in which such inherent powers had been invoked. One of such instances was the power of an appellate Court to stay execution proceedings pending an appeal from an order under Section 244(section 47 of the Code of 1908). Another was the power of the appellate Court to stay proceedings founded on a preliminary order in a partition suit against which an appeal has been preferred. There was no express provision in the Code for passing of such orders then. In Neelaveni v. Narqyana Reddi : (1919)37MLJ599 , this decision is quoted with approval, and the judgment of Woodroffe, J., is referred to as containing a collection of a number of cases in which the Court's inherent powers had been exercised. In Sasikanta v. Jabil : AIR1931Cal779 , Mulchand v. Jiwandas A.I.R. 1933 Lah. 50 and Ma Kyaw v. Daw Kye U A.I.R. 1935 Rang. 355. the inherent powers of the Court to stay proceedings were invoked on the analogy of the principle of Section 10 of the Civil Procedure Code even though the language of the section did not apply on the facts of those cases. In Nanda Kishore Singh v. Ram Golan Sahu I.L.R.(1912) Cal. 955 it was held that the High Court had inherent powers to make an order for stay of proceedings in execution of its own decree in view of an application by the judgment-debtor to the Judicial Committee for special leave to appeal to His Majesty in Council (vide also Jewan Ram & Co. v. Commissioner, Calcutta Port : AIR1939Cal308 ). In Mohamedali Essabhai v. Dharamsqy Jetha & Co. I.L.R.(1931) 55 Bom. 801 the inherent powers were invoked on the analogy of Order 41, Rule 5, for staying the enforcement of an award in an appeal against the order refusing to set aside the award. In this Court itself, in Sundaram Chettiar v. Valli Ammal (1934) 68 M.L.J. 16 : I.L.R. Mad.116 it was held that where an order appealed against is followed by an order sought to be stayed pending that appeal the enforcement of that subsequent order could be stayed (on the analogy of Order 41, Rule 5) in cases where such subsequent order would get automatically vacated if the appeal were to be allowed. Thus it will be seen that not only by this Court but also by the High Courts of Bombay, Calcutta, Lahore and Rangoon, the inherent powers of the Court were invoked for staying proceedings in circumstances not expressly provided in the Code.
12. None of the decisions relied on for the respondent, namely, 32 L.W. Short Notes 41, 57 M.L.J. Short Notes 44, Bhagwat Rajkoer v. Sheo Golam Sahu I.L.R.(1904) Cal. 1081 Jamuva Prasad v. Magai Ram A.I.R. 1916 Pat. 397 and Mohan Lai v. Shibdari : AIR1942Pat146 refer to the inherent powers of the Caurt. They are all cases in which the decision was based on the express language of Order 41, Rule 5.
13. In the case before me, if the appeal is allowed the preliminary decree will automatically get vacated and the further proceedings which are sought to be stayed also would follow suit. If the principle of the decision of the Bench of this Court in Sundamm Chetti v. Valli Ammal (1934) 68 M.L.J. 16 : I.L.R. Mad. 116 is applied to the facts of this case, it has to be held that this petition is maintainable.
14. Another contention which appears to have been raised in some of the cases cited before me was that the High Court had. inherent powers apart from Section 151 of the Civil Procedure Code to pass such orders. In Govindarajulu Naidu v. Imperial Bank of India, Vellore (1931) 35 L.W. 168 it was held by this Court that in a case like this, the High Court had powers to issue temporary injunction restraining the party from executing the decree sought to be set aside. It was stated therein that the High Court could exercise the powers of the Supreme Court, and reference was made to the decision in Peria Karuppan Chettiar v. Ramaswami Chettiar (1928) 27 L.W. 418 Rash Behari Roy v. Bhowani Churn Bose I.L.R.(1906) Cal. 97 and Mungle Chand v. Gopal Ram I.L.R.(1906) Cal. 101. But then as was pointed out by Bardswell, J., in Karuppayya v. Ponnuswami (1932) 64 M.L.J. 112 : I.L.R. Mad. 563 such powers can be invoked only in the exercise of the original civil jurisdiction and the two Calcutta cases cited in Govindarajulu Naidu v. Imperial Bank of India, Vellore 2 relate to cases which came up for decision on the original side of the High Court. The relevant provisions of the Letters Patent referred to in Karuppayya v. Ponnuswami (1932) 64 M.L.J. 112 : I.L.R. Mad. 563 clearly indicate that such powers can be invoked only on the original side (vide clause 21 of the Letters Patent).
15. I therefore find that this petition is maintainable. The interim order staying further proceedings is hence made absolute.
16. Before I conclude I will have to express my thanks to Mr. Kasturi Seshagiri Rap who at my request cited and examined all available rulings on the point not only under Section 151 of the Civil Procedure Code, but also under the Letters Patent and' the Government of India Act with reference to the powers of this Court to pass orders staying further proceedings in suits and proceedings in execution.