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Tribeni Sahu Vs. Bhagwat Bux - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1907)ILR34Cal1037
AppellantTribeni Sahu
RespondentBhagwat Bux
Cases ReferredKunja Lal v. Bahitram
Excerpt:
execution of decree - stay of execution--appeal--sale of immoveable property in execution of decree for money--appellate court, power of, to stay sale--practice civil procedure code (act xiv of 1882) section 546, para. 3. - r.f. rampini, acting c.j.1. the questions referred for our decision are as follows:(i) when an appeal has been filed against a decree for money, has the appellate court jurisdiction to entertain an application made under the 3rd paragraph of section 546 of the code of civil procedure, and to pass an order staying, pending the disposal of the appeal, the sale of immoveable property of the judgment-disposal of the in execution of that deoree?(ii)has the case of kunj lal marwari v. bahitram marwari (1904) 8 c.w.n. 381 been correctly decided? in order to answer these questions it seems necessary to examine closely the provision of sections 545 and 548 of the code of civil procedure.2. section 545 provides for the stay of execution of any decree. but gives the appellate court, as well as the.....
Judgment:

R.F. Rampini, Acting C.J.

1. The questions referred for our decision are as follows:

(i) When an appeal has been filed against a decree for money, has the Appellate Court jurisdiction to entertain an application made under the 3rd paragraph of Section 546 of the Code of Civil Procedure, and to pass an order staying, pending the disposal of the appeal, the sale of immoveable property of the Judgment-disposal of the in execution of that deoree?

(ii)Has the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381 been correctly decided? In order to answer these questions it seems necessary to examine closely the provision of Sections 545 and 548 of the Code of Civil Procedure.

2. Section 545 provides for the stay of execution of any decree. But gives the Appellate Court, as well as the Court which passed the decree, a discretionary power, on the three conditions therein laid down, to stay execution of an appealable decree, even before an appeal against the decree sought to be executed has been preferred.

3. Section 546 deals with two distinct cases--the only connection between them being that, in both of them, an appeal has been preferred against the decree sought to be executed. Paragraph 1 of Section 546 provides that the Court which passed the decree, before permitting execution to proceed when an appeal is pending, shall take security from the judgment-creditor for the restitution of the property which may be taken in the execution' Paragraph 2 gives the Appellate Court discretionary power to pass a similar order. Paragraph 3 deals with an entirely different case. It provides for the stay of a sale of immoveable property in execution of a decree for money, when an appeal is pending against the decree, on the judgment-debtor giving such security as the Court which passed the decree thinks fit. The terms of paragraph 3 are mandatory. It prescribes that the sale of immoveable property in execution of a decree for money only shall be stayed on security being furnished.

4. The terms of paragraph 3 of Section 546 are not very lucid. It has been contended that they mean that, on the judgment-debtor giving security, a sale of immoveable property may be stayed, either by the Court which passed the decree or the Appellate Court, provided the question of the amount of security is disposed of by the Court which passed the decree.

5. I am of opinion that this is not the correct meaning of paragraph 3 of Section 546, and that it provides for a sale off immoveable property being stayed only by the Court which passed the decree, for the following reasons:

(i) The provisions of this paragraph are nandatory. It renders it obligatory on the Court which passed the decree to stay the sale on security being given. It is therefore unnecessary for any such power being given to an. Appellate Court. If the first Court does not stay the sale, as it is required to do, the remedy would appear to be by appeal, but not by an application to the Appellate Court to stay the sale.

(ii) It will be seen that the first paragraph of Section 546 makes it obligatory on the Court which passed the decree to take security for the restitution of the property against which execution is sought, but when it gives the Appellate Court a similar power, it gives it a discretion to exercise it or not. From this, it seems, to me that, when no such power is given to an Appellate Court by the 3rd paragraph of Section 546, the omission was intentional.

(iii) If paragraph 3 of Section 546 applies to the Appellate Court, then, in the case referred to in the paragraph, the Appellate Court would have no discretion, but would, like the Court which passed the decree, be obliged to stay the sale. This would be very unusual, for in the cases referred to in Section 545 and paragraph 2 of Section 546, the Appellate Court is given a discretion. It is only the Court of first instance which, according to Section 546, paragraphs 1 and 3, has no discretion in the cases dealt with in these paragraphs.

(iv) If paragraph 3 of Section 546 be held to apply to an Appellate Court, then the Appellate Court has very limited powers--even less than the Court which passed the decree. It not only has no discretion, but must refer to the Court which passed the decree, the question of the security to be given by the judgment-debtor. It cannot settle this question itself.

6. I am therefore of opinion that an Appellate Court cannot pass orders under Section 546, paragraph 3, staying a sale of immoveable property.

7. The case of In the matter of the petition of Muradunnissa (1893) I.L.R. 15 All. 196 is to the same effect. The judgment of the learned Judges in this case does not proceed entirely on the ruling of this Court in Gossain Money Puree v. Gour Pershad Singh (1884) I.L.R. 11 Calc. 146. The learned Judges give their own reasons for their decision, and only fortify themselves by referring to the case of Gossain Money Puree (1884) I.L.R. 11 Calc. 146. In the case of Gossain Money Puree (1884) I.L.R. 11 Calc. 146 no definite rule is laid down, but their Lordships say (page 149):

We think, however, that Section 546 has nothing to do with the question before us. That section only relates to staying proceedings in execution by the Court which passed the decree in which the proceedings are pending. That Court has a right, under certain circumstances, and subject to certain conditions, to stay the execution of its own decrees while those decrees are under appeal.

8. This may be an obiter dictum, but it would seem to me that the learned Judges who decided that case were of the same opinion as I am, viz., that Section 546 only relates to the staying proceedings in execution by the Court which passed the decree in which the proceedings are pending.

9. The Rules referred to by the referring Bench are all of fairly recent date, the oldest being dated 1902. In none of them have the provisions of Section 546, paragraph 3, been referred to, far less considered.

10. It has been said that an Appellate Court has power to, or rather must stay a sale under the 3rd paragraph of Section 546, when read with the provisions of Section 582 of the Civil Procedure Code. I do not, however, think that Section 582 has any application. The words 'plaintiff' and 'defendant' would not seem to me to include 'judgment-creditor' and 'judgment debtor.' If they do, and an Appellate Court has, under Section 582 of the Civil Procedure Code, the same powers as a Court of first instance, this can only be, when the contrary does not appear from the context and, in my opinion, from the terms of Section 546, paragraph 3, the powers for staying the sale of immoveable property exercisable only by the Court which passed the decree.

11. It seems unnecessary to consider whether, apart from the terms of Section 546, an Appellate Court can stay a sale of immoveable property. The reference is with regard only to the provisions of Section 546, paragraph 3, and for the reasons given I would answer the first question referred to us in the negative and the second in the affirmative, and discharge the rule.

Brett, J.

12. The questions which have been referred to this Bench are as follows:

(i) When an appeal has been filed against a decree for money, has the Appellate Court jurisdiction to entertain an application made under the third clause of Section 546 of the Code of Civil Procedure and to pass an order staying, pending the disposal of the appeal, the sale of the immoveable property of the judgment-debtor in execution of that decree?

(ii) Has the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381 been correctly decided?

13. After the course which the case has taken at this hearing I think it is necessary that, being one of the Judges who made the reference, I should first state the following facts. The petitioner was the judgment-debtor in a suit in which a decree for costs had been passed against him. In execution of that decree certain immoveable property belonging to him had been attached. He appealed against that order and after his appeal had been admitted he applied to this Court for an order to stay the sale of his property pending the disposal of the appeal, and obtained a Rule on the opposite party to show cause why execution of the decree or costs should not be stayed pending the hearing of the appeal oh the applicant depositing the amount of the costs in the lower Court subject to the condition that pending the disposal of the appeal the opposite party should not be allowed to withdraw it. He had previously applied to the Court which passed the decree for such an order but had been directed to apply to the Court of appeal. It appears that that application was made a few days before the appeal was filed.

14. On the Rule coming on for hearing, the pleader for the opposite party contended that this Court as a Court of Appeal had no power to pass an order staying execution of the decree pending the disposal of the appeal. It was argued that the order could not be passed under Section 545 of the Civil Procedure Code, as the facts necessary to give this Court, as a Court of appeal, jurisdiction under that section had not been stated in the application or proved, and that this Court had no power to pass such an order under Section 546, Civil Procedure Code, as that section in its third clause gave power only to the Court which passed the decree and not to the Appellate Court. In support of the latter contention the case of Kunj Lal Marwari v. Bahitram Mamari (1904) 8 C.W.N. 381 was relied on. It was in fact argued that on an application such as the present this Court as a Court of Appeal had no jurisdiction to pass any order, that the Court which passed the decree alone had jurisdiction, and the case quoted above was relied on to support that broad contention.

15. For the petitioner, it was pointed out that it had been the practice of this Court for a long series of years to pass such orders on such applications, and that the decision in the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381 was contrary to the prevailing practice and that it could not be reconciled with the decisions in the previous cases.

16. The Judges who decided the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381 relied on a decision of this Court in the case of Gossain Money Puree v. Gour Pershad Singh (1884) I.L.R. 11 Calc. 146 and on a decision of the High Court of Allahabad, In the matter of the petition of Muradunnissa (1893) I.L.R. 15 All. 196 which purported to follow the ruling in Gossain Money Puree v. Gour Pershad Singh (1884) I.L.R. 11 Calc. 146. On referring to the decision in the case of Gossain Money Puree v. Gour Pershad Singh (1884) I.L.R. 11 Calc. 146 it appeared to us to be clear that it was no authority for the proposition that the Court which passed the decree alone had jurisdiction to pass an order under the third clause of Section 546 of the Civil Procedure Code and that the Appellate Court had no such jurisdiction. We accordingly pointed out in our order of reference that the question this Court had to decide in that case was not whether the Court before which the appeal was pending had jurisdiction to pass an order staying sale of immoveable property in execution of the decree for money against which the appeal had been preferred, but whether a Court which passed a decree in one case against which an appeal had been preferred had power to issue an injunction staying the sale in execution of a decree in another suit of property which was the subject of its own decree. In the course of their judgment in that case the Judges say 'We think, however, that Section 556 has nothing to do with the question before us. That section only relates to staying proceedings in execution by the Court which passed the decree in which the proceedings are pending. That Court has a right under certain circumstances and subject to certain conditions to stay execution of its own decrees while those decrees are under appeal.' The last sentence merely stated a fact which was patent from Section 546 itself. There was no suggestion in the judgment that the Appellate Court had no jurisdiction to pass a similar order under Section 546 of the Civil Procedure Code. In fact the question was neither raised nor considered.

17. The contention advanced before us, however, was that the decision in the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381 was a bar to our making absolute the Rule which we had issued in favour of the petitioner, and we were constrained to make the reference to the Full Bench at the instance of both parties.

18. When the reference has come on for hearing before this Bench the learned pleader, who has appeared to oppose the Rule, has at once admitted that he is not prepared to argue that this Court as a Court of Appeal has not power to make absolute the Rule which has been issued, and has confined his argument to what in the circumstances may be regarded as the academic discussion whether this Court has power to pass the order under the third paragraph of Section 546 of the Civil Procedure Code. He has also endeavoured to support the decision of this Court in the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381 on the ground that it only dealt with the narrow question whether this Court as a Court of Appeal had power, under Section 546 of the Civil Procedure Code, to pass the order staying execution and not whether it had power otherwise to pass such an order.

19. I confess to a feeling of some surprise at the course which has been adopted in the argument before us, and also at the suggestion which has been made only at this stage that the Division Bench which decided the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381 only dealt with the narrow question whether the application could be granted under the third clause of Section 546 of the Civil Procedure Code. It would certainly be very unusual for any Court, mure especially the High Court, to refuse to pass in favour of a petitioner an order which the Judges knew he was entitled to under the law, simply because he had made his application under a wrong section of the Code. It has also been suggested that in all the cases to which reference has been made in the order of reference it must be assumed that the order was passed by the different Benches under some power which this Court had as a Court of Appeal otherwise than under Section 546 of the Civil Procedure Code. It can hardly be argued that the orders were passed under Section 545 of the Civil Procedure Code, as none of the facts, necessary to be stated in support of an application under that section or proved, appear to have been stated or proved in those cases. It is suggested that the orders may in each instance have been passed under the inherent power which this Court, as a Court of Appeal and having seisin of the case after the institution of appeal, has to stay proceedings pending the hearing of the appeal. It is remarkable, however, that no such contention was advanced before the Judges who decided the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381 or, if it was generally recognised that the Court had such a power, that the learned Judges in that case omitted to exercise it.

20. The true explanation appears to me to be different. Applications such as the present when made to this Court as a Court of Appeal without any statement or proof of facts necessary to bring the application under Section 545 of the Civil Procedure Code, have all along been regarded as applications under Section 546 of the Civil Procedure Code, have bee a dealt with as such by the Judges of this Court in the different Benches, and have been granted except only, in the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381.

21. The question then is whether this Court for a long series of years and in a long series of cases has been wrong in the interpretation which it has given to 3rd clause of Section 546 of the Civil Procedure Code, or whether the decision in the case of Kunj Lal Marwari v. Bahitram Murwari (1904) 8 C.W.N. 381 is wrong. In my opinion the latter case has been wrongly decided.

22. The Judges of the Allahabad High Court who dealt with in the matter of the petition of Muradunnissa (1893) I.L.R. 15 All. 196 and also the Judges of this Court who decided the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381 remark in their judgments that the words of the 3rd clause of Section 546 of the Civil Procedure Code, are 'not very explicit' and are 'somewhat vague.' The clause runs as follows: 'And when an order has been passed for the sale of immoveable property in execution of a decree for money and an appeal is pending against such decree, the sale shall, on the application of the judgment-debtor, be stayed until the appeal is disposed of on such terms as to giving security or otherwise as the Court which passed the decree thinks fit.' The section does not provide that the order shall be passed only by the Court which passed the decree, but it is argued that the concluding words of the clause indicate that it was intended to provide that the order should be passed only by that Court. It is admitted that it is usual for this Court when passing orders under Section 545 of the Civil Procedure Code, to leave to the Court which passed the decree to decide the terms as to giving security, that Court being in a better position to determine the amount and nature of the security to be furnished. But it is argued that the words 'or otherwise' deprive this Court of all discretion to pass an order under the section and clearly show that the clause was intended, only to give jurisdiction to the Court which passed the decree.

23. This view is not in my opinion sound. Section 546 of the, Civil Procedure Code must be read as a whole. The first clause gives the Court which passed the decree authority to take security for restitution of any property which may be taken in execution of a decree, and the second clause gives, as an alternative, the Court of Appeal authority to pass such an order. The third clause then follows, coupled to the preceding by the conjunction 'and,' in which no Court is specified as the Court which is empowered to pass the order under that clause. Grammatically, the power conferred by the third clause would be capable of exercise either by the Court which passed the decree or by the Court of Appeal and the concluding words of the clause which give the Court which passed the decree power to stay the sale otherwise than on furnishing security, cannot be taken to deprive the Court of Appeal of powers to pass any order under that section which may seem fit to it. In my opinion, under the strict words of the section the Appellate Court has power to pass an order under the third clause of Section 546 of the Civil Procedure Code staying execution.

24. It is conceded that this Court as a Court of Appeal has power to direct the stay of sale of immoveable property pending the disposal of the appeal if the Court which passed the decree refused to pass such an order on an application made to it under Section 546 of the Civil Procedure Code, and an appeal against the order of refusal were made to this Court. In such an appeal the order of this Court in substance, if not in form, will be one under Section 546 of the Civil Procedure Code, but I am unable to accept the view that this Court, as the Court of Appeal, would only have jurisdiction to pass the order on such an appeal.

25. Further, it is admitted that the Court of Appeal which has seisin of the whole case can make any order it pleases staying proceedings pending the hearing of the appeal: see also the decision of the Full Bench in the case of Balkishen Sahu v. Khugnu (1904) I.L.R. 31 Calc. 722 and the decision of a Division Bench in the case of Pasvpati Nath Bose v. Nanda Lal Base (1901) I.L.R. 28 Calc. 734. If then the order in the present case can only be passed under the third clause of Section 546 of the Civil Procedure Code, and no other section has been suggested by the learned pleader who opposes the Rule, the Court of Appeal certainly has power to pass the order under that section. Also it would seem that under the provisions of Section 582 of the Civil Procedure Code, power is given to the Appellate Court to pass under the third clause of Section 546 of the Civil Procedure Code, any order which the Court of Original Jurisdiction could pass.

26. For the above reasons, I would answer the first of the questions referred in the affirmative and the second in the negative, and I would make the Rule absolute.

Mitra, J.

27. I agree with Brett, J., and I have nothing to add to the reasons given by him.

Woodroffe, J.

28. In my opinion the last paragraph of Section 546 was enacted to give Courts of Original Jurisdiction power to stay, under the circumstances mentioned, the execution of decrees, the subject of appeal. Its wording shows this. I think the paragraph refers to an order by the Court of first instance. It would, however, be a curious conclusion that in such a matter a Court which has seisin of the appeal should have less power as regards its subject-matter than the Court which has no concern with it. The jurisdiction of the Appeal Court, which in my opinion exists, was admitted at the bar, and is assumed in the long course of practice of the Court. It does not appear to me to be material to enquire what is the authority for such jurisdiction; whether it is to be found in this section read with Section 582, or in Section 545, or in the inherent jurisdiction which a Court of Appeal possesses in respect of the subject of litigation submitted to it. It is sufficient that the power exists.

29. As regards the second question submitted to us, the Bench which decided the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381 did so not with reference to the merits which were no considered, but on the ground 'that an Appellate Court has no jurisdiction in such matters.' Moreover, it is not to be supposed that a Court in the administration of justice will refuse an application, which on the merits it ought to grant, and in law can grant, simply because the applicant asks the Court to exercise its admitted powers under a wrong section. In my opinion, therefore, the decision cited, so far as it states or assumes that the Appellate Court had no power to grant the application made to it, is erroneous. I am unable to agree with the Chief Justice that this Rule should be discharged. I do not, as I have said, think we should be right in doing this without first determining whether we have power to grant the application, even though it may have been made under a section which is not applicable. I would, therefore, make the Rule absolute.

Mookerjee, J.

30. The two questions which have been referred for decision to a Full Bench are as follows:

(i) When an appeal has been filed against a decree for money, has the Appellate Court jurisdiction to entertain an application made under the third paragraph of Section 546 of the Code of Civil Procedure and to pass an order staying, pending the disposal of the appeal, the sale of immoveable property of the Judgment-debtor in execution of that decree?

(ii) Has the case of Kunj Lal Marwari v. Bahitram Marwart (1904) 8 C.W.N. 381 been correctly decided?

31. The circumstances under which the reference has been made may be briefly stated. The respondent obtained a decree for costs in the Court of the Subordinate Judge of Palamow. Execution was taken out. Immoveable property of the judgment-debtors was attached, and was advertised for sale on the 20th November 1906. The judgment-debtors applied to the Court below for stay of execution; this was apparently under the second paragraph of Section 545 of the Civil Procedure Code, because at the time of the application no appeal had been preferred to this Court and the time for appealing had not expired. On the 2nd November 1906, it is said, the lower Court ordered the judgment--debtors to apply to the Appellate Court. The order, however, is not produced before us, and its exact terms are not known. What probably happened was that the Court below declined to stay execution under the second paragraph of Section 545 of the Civil Procedure Code, and held that the judgment-debtors might prefer an appeal to this Court and then obtain an order for stay of execution. The appeal was lodged on the 12th November 1906, and on the 15th November, the Rule now under consideration was issued, calling upon the decree-holders to show cause why execution for costs should not be stayed on the petitioner's depositing the amount of costs in Court, subject to the condition that pending the disposal of the appeal these costs should not be allowed to be taken out by the opposite party. When the Rule came on for hearing, objection was taken on behalf of the decree-holder that this Court as a Court of Appeal had no power to stay the sale under the third paragraph of Section 546 of the Civil Procedure Code, and it appears to have been further suggested that if Section 546 of the Civil Procedure Code was inapplicable, there was no other provision of the law under which the sale could be stayed by this Court. In support of this position, reliance was placed upon the case of Kunj Lal Marwari v. Bahitram Marwari (1904) 8 C.W.N. 381 which is based upon a dictum in the case of Gossain Money Puree v. Gour Pershad Singh (1884) I.L.R. 11 Calc. 146, and upon the judgment of the Allahabad High Court in In the matter of the petition of Muradunnissa (1898) I.L.R. 15 All. 196. The learned Judges who heard this Rule found themselves unable to accept as correct the decision in Kunj Lal v. Bahitram (1904) 8 C.W.N. 381. Hence this reference.

32. The first question referred to us for decision is divisible into two parts, one of which relates to the scope of the third paragraph of Section 546 of the Civil Procedure Code, and the other to the power of an Appellate Court to pass an order for the stay of sale of immoveable property pending the hearing of an appeal against the money-decree under execution. The answer to the first part depends upon the construction of Section 546 of the Civil Procedure Code; if it is answered against the petitioners, the decision of the second part will depend upon grounds independent of Section 546 of the Civil Procedure Code.

33. Section 545 of the Civil Procedure Code relates to the stay of execution of decrees. It provides that when an appeal has been preferred, the Appellate Court may for sufficient cause order the execution to be stayed; if the time for appealing has not expired the Court which passed the decree may make a similar order. The proviso to the section specifies the grounds and conditions upon which execution may be stayed. Section 546 consists of two parts between which apparently there is no connection. The first part deals with the case in which security may be required from the decree-holder for restitution. An order for security may be made by the Court which passed the decree, and the Appellate Court may also direct that Court to take security. The second part of the section deals with an entirely different matter, namely, the stay of sale of immoveable property in execution of a decree for money. The two matters are quite distinct, and it is not easy to perceive why they should have been provided for in the same section of the Code The history of the legislation on the subject does not explain the difficulty. In Act VIII of 1859, Section 339 authorised the Court which made the decree to require security for restitution. This was repealed by Section 1 of Act XXIII of 1861, Section 36 of which empowered the Court which made the decree to take security for restitution, either of its own motion or under the direction of the Appellate Court. When the Code was recast in 1877, Section 36 of Act XXIII of 1861 was reproduced as the first half of Section 546 of the Civil Procedure Code; the second-half about the stay of sale of immoveable property was an entirely new provision. The question, therefore, arises, whether the third paragraph of Section 546 of the Civil Procedure Code, is in terms applicable to a Court of Appeal. In the first place, it does not say expressly by which Court the sale is to be stayed, but the language seems to suggest that the stay is to be by the Court which made the decree. In the second place, the first part of the section about security for restitution expressly provides that the power may be exercised either by the Original or by the Appellate Court. In the third place, when the sale is stayed the stay is on such terms as to giving security or otherwise as the Court which passed the decree thinks fit, that is to say, the most important part of the proceeding has in any view to be per formed by the original Court. If it was intended that the appellate Court should act under the third paragraph of Section 546 of the Civil Procedure Code, it is not easy to understand why the substance of the matter should be left to the discretion of the Original Court. In the fourth place, the history of the legislation on the subject would show that as the Appellate Court could stay execution under Section 545 of the Civil Procedure Code and as it was thought desirable that the Original Court should have somewhat similar powers, the last paragraph of Section 546 of the Civil Procedure Code was introduced so as to authorise the Court of first instance to stay execution in one case, namely, when the decree under execution is for money and the property ordered to be sold is immoveable property. On these grounds, I must hold that the third paragraph of Section 546 of the Civil Procedure Code does not by itself apply to an Appellate Court. This leads me to the second part of the first question referred to the Full Bench, namely, whether an Appellate Court has power during the pendency of an appeal against a decree for money to stay a sale of immoveable property in execution of the decree.

34. In the first place, it is obvious that the Appellate Court has such power under Section 545 of the Code of Civil Procedure. It is suggested, however, that the power which an Appellate Court possesses under that section, is of a very restricted character, inasmuch as no order can be made, unless it is established that substantial loss may result if execution is allowed to proceed, whereas if the judgment-debtor has recourse to the provisions of Section 546, he is entitled to have the sale stayed as a matter of right, subject to the terms imposed by the Court. In my opinion, this apparent anomaly may be removed, i in the case of an application for stay of sale of immoveable property in execution of a money-decree, the discretion vested in the Appellate Court under Section 545 is exercised in the light of the provisions of the third paragraph of Section 546. No doubt, under Section 545 a discretion is left to the Court, but it is a judicial discretion, and it is also made obligatory upon the Court to satisfy itself, that substantial loss may result if execution is not stayed. The third paragraph of Section 546 of the Civil Procedure Code, however, indicates plainly that in the opinion of the Legislature, the sale of immoveable property in execution of a decree for money while an appeal is pending against such decree, is a case of substantial loss within the meaning of Clause (a) of the proviso to Section 545 of the Civil Procedure Code. In other words, if an application is made, under Section 545 of the Civil Procedure Code, to an Appellate Court for stay of sale, under these circumstances, if the Appellate Court refuses to stay the sale, it would only stultify itself, as it is open to the judgment-debtor to have the sale stayed as a matter of right by an application to the original Court. Under these circumstances, the Appellate Court must exercise its power under Section 545 of the Civil Procedure Code, in the light of and with due regard to the provisions of the third paragraph of Section 546 of the Civil Procedure Code, so as to effectuate the intention of the Legislature and do complete justice between the parties. In the view I take of the scope of Sections 545 and 546 of the Civil Procedure Code, when an application is made to an Appellate Court for stay of sale of immoveable property in execution of a decree for money which is under appeal, it is not merely in the power but it is also the duty of the Appellate Court to order a stay of sale, if the terms imposed by it are carried out; these terms may be settled by the Appellate Court or that Court may leave the terms to be settled by the Original Court.

35. If the view indicated above be well founded, it becomes unnecessary to examine in detail whether the source of the power of the Appellate Court to stay proceedings in execution of the decree under appeal, during its pendency, may be traced to any general principles; but in my opinion it is reasonably clear that apart from the provisions of Section 545 read with those of Section 546 of the Code, the Court of Appeal has inherent power to make an order for stay. As observed in the case of Wilson v. Church (1879) 12 Ch. D. 454, the exercise of this power is based on the ground that otherwise the appeal though successful might become nugatory, and the Appellate Court may be called upon to exercise the power though the Original Court has concurrent jurisdiction: Cropper v. Smith (1883) 24 Ch. D. 305. The foundations of the principle were explained by this Court in the cases of Panchanan Singha Roy v. Dwarka Nath Roy (1905) 3 C.L.J. 29 and Hukum Chand Boid v. Kamalanand Singh (1905) I.L.R. 33 Calc. 927. The existence of such inherent power has been widely recognised in the American Courts, and it has been repeatedly ruled that although the mere presentation of an appeal does not operate as a supersedeas, it is within the power of the Court of Appeal, in its discretion, after it has obtained jurisdiction of a case by way of appeal, to allow a supersedeas in cases not provided for by Statute and upon, terms which the Court may prescribe: see Home Fire Insurance Co. v. Ducher (1897) 48 Nebraska 755 ; 67 N.W. 766, Gandy v. State (1880) 10 Nebraska 243 ; 4 N.W. 1019, In re Epley (1901) 10 Oklahoma 631; 64 Pacific 18; Haught v. Irwin (1895) 166 Pa. St. 548 ; 31 Atlantic 260, Janesville v. Janesville (1895) 89 Wisconsin 159 ; 61 N.W. 770. The question is examined and the authorities are reviewed in Freeman on Executions, Volume 1, Section 32A, and in the Encyclopaedia of Pleading and Practice, Volume XX, page 1237; the principle upon which the application of the doctrine is based appears to be that, where a party is seeking to obtain relief by exercise of an undoubted right of appeal, on the one hand, the appellate remedies cannot be effectual unless during the time necessary to make them available, the execution of the decree complained of can be suspended, and on the other hand, as injustice may follow the suspension of the right to execution during the prosecution of the appellate remedies, if the proceedings of the original Court are ultimately found to be free from error, the judgment-debtor shall give security for the due performance of the order of the Appellate Court, or to indemnify the decree-holder from any possible loss due to the suspension of his right to execution. To put the matter in another way, it is competent to the Court, to accomplish the ends of justice, to stay execution and take security from the judgment-debtor, or conversely, allow execution to proceed and take security for restitution from the judgment-creditor. This salutary doctrine was expressly recognised in the earliest Regulations relating to Civil Procedure in this country: see Regulation V of 1793, Sections 12 and 14, and Regulation VI of 1793, Sections 10 and 12, under which in the case of an appeal against a decree for the possession of land, the judgment-debtor could as a matter of right, obtain stay of execution upon furnishing security, and in the case of all other decrees the Court could, in its discretion, either stay proceedings and take security from the judgment-debtor or allow execution and take security from the judgment-creditor; in each instance, the order might be made by the Original Court, and in the case of appeals against decrees for land, the order might in addition be made by the Court of Appeal. On these grounds, I must hold that, a Court of Appeal has inherent power to grant stay of proceedings pending an appeal, and, necessarily, therefore, to stay a sale immoveable property in execution of a money-decree. It is, therefore, needless to examine whether Section 582, read with Section 546, authorises the Court to make such an order for stay. Primd facie, however, it would seem that Section 582 only authorises a Court of Appeal to exercise in relation to the appeal the same powers as might be exercised by the Original Court in relation to the suit. If, therefore, the only appeal which has been preferred is against the decree, it would be difficult to hold that under Section 582 the Appellate Court has power to deal with the execution proceedings, for although the latter form under the Explanation to Section 647 of the Civil Procedure Code, proceedings in the suit, they are, for many purposes, treated as distinct, for instance, for purposes of limitation. If, however, it be held, as has been ruled in some cases [Granger v. Craig (1881) 85 N.Y. 619, United States v. Mclemore (1846) 4 Howard 286, Eaton v. Cleveland R. Co. (1891) 41 Fed. Rep. 421], that the original Court has inherent power to stay execution temporarily when it is necessary to accomplish the ends of justice, we might apply Section 582 and hold that the Appellate Court can exercise similar powers. If, however, recourse be had to the doctrine of the inherent powers of the Court, it is much simpler to attribute such power to the Court of Appeal itself. It may be added, that if an appeal has been preferred against an order in the execution proceedings, the position becomes obvious, for instance, if an application is made to an Original Court under Section 546 of the Civil Procedure Code, and that Court refuses to stay the sale, an appeal may be preferred against that order as it is one under Section 244 of the Civil Procedure Code, and an order for stay may be obtained during the pendency of this appeal on the principle explained in the oases of Pasupati Nath Bose v. Nanda Lal Bose (1901) I.L.R. 28 Calc. 734, Balkishen Sahu v. Khugnu (1904) I.L.R. 31 Calc. 722 and Brij Coomaree V. Ramrick Das (1901) 5 C.W.N. 781.

36. I would, therefore, answer the questions referred to the Full Bench as follows. As regards the first part of the first question, namely, whether when an appeal has been filed against a decree for money, the Appellate Court has jurisdiction to entertain an application made under the third paragraph of Section 546 of the Civil Procedure Code, my answer is in the negative. As regards the second part of the first question, namely, whether during the pendency of such an appeal, the Appellate Court has power to stay the sale of immoveable property of the judgment-debtor in execution of that decree, my answer is in the affirmative. As regards the second question, namely, whether the case of Kunja Lal v. Bahitram (1904) 8 C.W.N. 381 was correctly decided, my answer is that it was correctly decided in so far as it ruled that the third paragraph of Section 546 of the Civil Procedure Code had no application, and it was not correctly decided in so far as the application for stay of sale was refused, while it ought to have been granted independently of Section 546 of the Civil Procedure Code, I would make the present Rule absolute and direct a stay of the sale upon the conditions mentioned in the Rule. It is satisfactory to note that what has undoubtedly been the practice for many years past, may be defended on reasonable and intelligible grounds, for, in the words of Lord Coke, that exposition shall be preferred which is approved by constant and continual use and experience; the practice of the Court is the law of the Court, and it would be generally found that inveterate practice stands upon principles of justice and convenience.


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