1. This was a rule issued on the opposite party to show cause why an order passed by the Subordinate Judge, First Court, Alipore, refusing to entertain an application for stay of sale under Order 41, Rule 6(2) should not be set aside. The material facts are as follows : The opposite party obtained a decree on the original side of this Court. He took out execution proceedings in the court of the Subordinate Judge, First Court, Alipore. The petitioner filed an objection under Section 47, Civil P.C. This objection was heard by the learned Subordinate Judge and disallowed on 29th July 1939. Thereafter the petitioner filed an appeal to this Court against the order disallowing his objection. When the appeal was admitted, a rule was issued to the opposite party to show cause why further proceedings in the execution case and the sale of the immovable property should not be stayed, pending the decision of the appeal. When the rule was heard, an order was passed staying further proceedings on terms. The terms were that Rs. 1000 should be deposited on or before 31st January 1940 that a further sum of Rs. 1500 should be deposited on or before 20th March 1940 and that security for the balance to the satisfaction of the lower Court should be furnished by 20th March 1940. The first two terms were fulfilled and security for the balance of the amount due was tendered to the lower Court before 20th March 1940. But the lower Court was dissatisfied with the security offered and directed the petitioner to furnish further security. The Court then decided that it had no jurisdiction to extend the time within which security should be furnished. Thereafter, the present petitioner applied to the learned Subordinate Judge under Order 41, Rule 6(2) for stay of the sale of the immovable property. The learned Subordinate Judge held that he had no jurisdiction to entertain that application, because there was no appeal pending from the decree in execution of which the sale was to be held. He, accordingly, rejected the application under Order 41, Rule 6.
2. This rule has been obtained to show cause why that order should not be set aside. It has been pointed out by the learned advocate for the petitioner that the Subordinate Judge has overlooked the provisions of Order 41, Rule 8 and it is not necessary in order to give the Court jurisdiction under Order 41, Rule 6 that there should be an appeal pending from the decree in execution of which the sale was to be held. It is sufficient if there be pending an appeal from an order made in execution of that decree. The rule has been opposed not on the ground on which the order was passed by the Subordinate Judge, but on the ground that the learned Subordinate Judge had no jurisdiction to vary the order passed by this Court and had no jurisdiction to pass an order staying the sale which would in effect modify the stay order passed by this Court. In our opinion, there is no substance in this objection. The order passed by this Court in Rule No. 1228 (M) of 1939 was an order passed under Order 41, Rule 5. Such an order is discretionary, it can be granted or refused at the discretion of the appellate Court. He will assume for the purposes of this case that the terms on which stay was granted under Order 41, Rule 5 were not fulfilled. It follows, therefore, that the rule for stay under Order 41, Rule 5 must be taken to have been discharged. That order stands and cannot be set aside or modified by the lower Court and possibly not even by this Court. The result of this is that the position is the same as if an order for stay under Order 41, Rule 5 had been refused by this Court. But Order 41, Rule 6 does not leave it to the discretion of the Court whether stay should be granted or not. Under that Rule, the sale shall be stayed on such terms as to security or otherwise as the Court thinks fit. It follows, therefore, that if an order has been made for sale and an application under Order 41, Rule 6 has been made to the Court, the Court shall stay the sale on suitable terms and the Court must consider what terms are suitable. The fact that the stay has been refused under Order 41, Rule 5 does not justify the Court in refusing to exercise the jurisdiction vested in it under Order 41, Rule 6. This very question came up for consideration in this Court in Jitendra Nath v. Bholanath ('40) 44 C.W.N. 701 where it has been held that
although an application for stay of execution of a decree made under Order 41, Rule 5(1), Civil P.C., may have been refused by the appellate Court, still after an order for sale of immovable property in execution of the decree has been made, the Court making such order has jurisdiction to, and indeed must, stay the sale on terms as to security or otherwise.
3. When the terms on which the stay was granted under Order 41, Rule 5, were not fulfilled the position was exactly the same as if stay under that order had been refused. In our opinion, it was incumbent upon the learned Subordinate Judge to entertain the application under Order 41, Rule 6 and to consider what were the appropriate terms on which the sale should be stayed. This rule is therefore, made absolute, the order of the learned Subordinate Judge is set aside and the case is remanded for disposal of the application under Order 41, Rule 6(2) according to law. The petitioner is entitled to his costs which we assess at one gold mohur.