Madhavan Nair, Officiating C.J.
1. This is an application for the stay of execution of the final decree in a mortgage suit passed by the Subordinate Judge of Devakottai in O.S. No. 29 of 1927.
2. The second defendant in the suit is the petitioner before us. The mortgage bond was executed by the first defendant, the adopted son of one Chockalingam Chettiar. Defendants 3 and 4 are the children of the first defendant. The second defendant - the petitioner - is the natural son of the said Chockalingam Chettiar by his second wife whom he married after the death of his first wife who was the adoptive mother of the first defendant. The application is made under Order 45, Rule 13 of the Code of Civil Procedure. The first Court passed a preliminary mortgage decree dismissing the suit as against defendants 2 to 4. On appeal, the High Court reversed the decree of the trial Court and passed a mortgage decree against the second defendant and defendants 3 and 4 as well.
3. An appeal to the Privy Council against this decree has been filed by the second defendant and it has been admitted. Subsequent to the filing of the appeal, the trial Court has passed the final decree, and now the decree-holder, it is alleged, is seeking to execute the final decree; and the petitioner asks us to stay the execution of the decree pending disposal of the appeal to His Majesty in Council.
4. The respondent takes a preliminary objection that this Court has no jurisdiction to stay execution of the final decree as no appeal has been filed by the petitioner against that decree. His objection is based upon the wording of Order 45, Rule 13. CI. 1 of the order says that:
Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.
5. It is said that under this clause as well as under Clause (2) which we will presently refer to in detail the stay of execution can be ordered by this Court only in execution of a decree which has been appealed against which, in this case, would be the preliminary decree; and since no appeal has been filed against the final decree, it is argued, proceedings in connection with the final decree should not be stayed by this Court under the provisions of these clauses. It is clear that if the appellant succeeds in his appeal before the Privy Council which he has filed against the preliminary decree, the result will render the final decree passed by the Court ineffective. But it is argued that though it may be so, with respect to the stay of execution of the decree, such stay can be granted only as against the decree that has been appealed against.
6. In support of the above argument, no decision directly bearing on the question has been brought before us and we have to depend upon the wording of the section. We find that under Clause (2) of Order 45, Rule 13, the Court may, on special cause shown by any party interested in the suit or otherwise appearing to the Court, pass certain specific orders with reference to the decree which has been appealed from. Under Sub-clause. (a) it may impound any niovable property in dispute or any part thereof; under Sub-clause. (b), the Court may allow the decree appealed from to be executed, taking such security from the respondent as it thinks fit for the due performance of any order which His Majesty in Council may make on the appeal. Under Sub-clause. (c), it may stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealer1 from, or of any order which His Majesty in Council may make on the appeal. We may pause here for a moment and point out that the relief to be granted by the High Court under Sub-clause. (b) and (c) is in respect of 'the decree appealed from'. Coming to Sub-clause. (d), the last clause, we find the Court has power to
place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a Receiver or otherwise.
7. It is noticeable, under this clause, the Court has power to give whatever direction it thinks necessary respecting the subject-matter of the appeal as it thinks fit by the appointment of a Receiver or otherwise, whereas cls. (b) and (c) contemplate action by the Court with reference to the decree appealed from. Under Sub-clause. (d), action may be taken by the Court and directions may be issued with reference to the subject-matter of the appeal. The subject-matter of the appeal in this case is the property involved in the suit. It is not stated that the direction is with reference to the decree that is appealed from but it is with reference to the subject-matter of the appeal. If the Court has power to pass orders which it thinks should be passed in a particular case with respect to the subject-matter of the appeal, then we think that this Court has power to pass orders with respect to the property involved in the suit, if we think on the merits such order should be passed. In our opinion, Order 45, Rule 13, Clause 2(d) enables the High Court in a proper case, even though no appeal has been filed against the final decree and the appeal pending before the Privy Council is only with respect to the preliminary decree, to pass necessary orders in order to safeguard the rights of the applicant when he asks for stay of execution of the final decree, as in this case. If the property which is the subject-matter of the appeal is now sold, unless the decree-holder purchases the property himself, it will be difficult for the petitioner to get his portion of it back in case he succeeds in the Privy Council appeal. It is therefore necessary that we should pass orders with a view to safeguard his interests in the case. At the same time in spite of the fact that the respondent has obtained a final decree for the sale of the petitioner's share of the property, we think the interests of the respective parties may be safeguarded by passing the following order:
8. The lower Court will find out the value of the property and the petitioner will give security for the difference, if any, between his share of the value of the property and his share of the liability under the decree. The lower Court will ascertain the value of the property within three weeks from the receipt of this order and the petitioner will, when he is called upon to give security, give the same within two weeks thereafter. On such security being furnished, the execution of the decree will be stayed but only with respect to the petitioner's share in the hypotheca.