Skip to content


P.C. Thirumalai Goundar Vs. Town Bank, Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1934Mad709; 153Ind.Cas.630
AppellantP.C. Thirumalai Goundar
RespondentTown Bank, Ltd.
Cases ReferredSankara Das v. Kasturi Lal
Excerpt:
- - 69, that an order like the one in question is clearly against the spirit of the rule as it is tantamount to an order refusing to stay the sale......of the judgment-debtor to the court which made the order, be stayed on such terms as to giving security or otherwise.2. it is argued that the expression 'be stayed on such terms as to giving security or otherwise' means that the execution can be stayed either on giving security or without security and that the word 'otherwise' should be understood as having reference to security and nothing else. it is difficult to accept this plea having regard to the ordinary meaning of the expression used in the rule. the expression 'term as to giving security or otherwise' would mean that the term may be either giving security or any other term, such as the deposit ordered by the court in this case. in ramnath singh v. kamaleshwar prasad singh (1911) 9 i.c. 323, it was observed by the.....
Judgment:

Madhavan Nair, J.

1. The judgment-debtor is the appellant. In a suit brought against him, a money decree for Rs. 6,000 was passed. In execution of that decree properties had been brought to sale. Then he filed an application under Order 41, Rule 6, Clause (2) to stay the sale in execution. The learned Judge ordered that the sale can be stopped only on the petitioner depositing into Court the decree amount, i.e., the amount that would be due on the date the amount is deposited, on or before 15th January 1934, failing which he ordered the petition will stand dismissed with costs. Mr. Bhashyam Ayyangar on behalf of the appellant argued that under Order 41, Rule 6, Clause (2), the lower Court had no jurisdiction to pass an order staying execution making it a condition that the decree amount should be deposited. According to him the only term which the learned Judge can impose under the order is that security should be given and that he can impose no other condition. Whether this argument can be accepted or not will depend on the construction of the terms of the order. Order 41, Rule 6, Clause (2) runs as follows:

Where an order has been made foe the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise.

2. It is argued that the expression 'be stayed on such terms as to giving security or otherwise' means that the execution can be stayed either on giving security or without security and that the word 'otherwise' should be understood as having reference to security and nothing else. It is difficult to accept this plea having regard to the ordinary meaning of the expression used in the rule. The expression 'term as to giving security or otherwise' would mean that the term may be either giving security or any other term, such as the deposit ordered by the Court in this case. In Ramnath Singh v. Kamaleshwar Prasad Singh (1911) 9 I.C. 323, it was observed by the learned Judges of the Calcutta High Court that under the terms of this order the Court could make it a condition of the order for stay of sale that the money decreed should be deposited in Court in cash. We respectfully agree with this view of the meaning of the expression used in the order. A decision of the Lahore High Court has been brought to our notice by the learned advocate for the appellant which seems to support his contention. The learned Judges say in Sankara Das v. Kasturi Lal 1925 Lah. 69, that an order like the one in question is clearly against the spirit of the rule as it is tantamount to an order refusing to Stay the sale. This view does not commend itself to us having regard to the ordinary meaning of the language used in Order 46, Rule (6), Clause 2. We therefore hold that the lower Court has jurisdiction to make it a condition that the stay would be given only on the judgment-debtor depositing the money as ordered by the lower Court. Then it was argued that on the merits the lower Court's order is not justified. We see no reason to interfere with the order on the merits. In the view Which we take of the case it is unnecessary to decide the two other questions propounded to decision, namely, whether an appeal lies against the order in question and whether the previous order passed by the learned Judge in this case would be a bar to the passing of this order. The appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //