Brett and Sharfuddin, JJ.
1. The present rule was obtained by the petitioners, the plaintiffs, against the defendant No. 1, who was the judgment-debtor in a suit before the Subordinate Judge of Cuttack, to show cause why the order obtained by the defendant No. 1 in that suit from the Subordinate Judge, on the 1st June 1909, extending the period fixed in the decree for the execution of a kabuliyat by him in favour of the petitioners, the decree-holders in that suit, beyond the period stated in the decree, should not be set aside.
2. It appears that by the decree, the present opposite party, who was the defendant No. 1 in suit No. 404 of 1907 in the Court of the Subordinate Judge of Cuttack, was directed to execute a kabuliyat as sarbarakar in favour of the plaintiffs, decree-holders, within two months from the date of the decree. The opposite party, the judgment-debtor, appealed to this Court, and within the two months limited by the decree, he put in an application to this Court, on the 20th May 1909, praying for an order to stay, pending the hearing of the appeal, the order of the Subordinate Judge passed in the decree directing him to execute the kabuliyat within two months from the date of the decree, or that this Court should pass such other order as to it might seem proper. The only order passed by this Court on that application was that the application should be put up when the appeal was disposed of. That order was dated the 20th May 1909. The opposite party, the judgment-debtor, then seems to have gone back to the Court of the Subordinate Judge of Cuttack, and, on the 1st of June 1909, obtained the order in respect of which the present rule has been issued.
3. In support of the rule, it is contended that, after the appeal had been filed, the Subordinate Judge had no power, under the law, to modify his decree or to extend the period fixed in the decree for the execution of the kabuliyat by the judgment-debtor. It is not clear under what provision of the law the order was passed by the Subordinate Judge; but it is suggested that it might have been passed under Section 148 of the new Code of Civil Procedure. On behalf of the petitioners it has, however, been contended that Section 148 cannot be taken to give to any Court power to interfere with or modify its decree after there has been an appeal filed against the decree, and we think that this contention is sound. The only Court that could, after an appeal had been preferred, modify the terms of the decree or extend the time fixed in the decree for its execution, or suspend the order made in the decree would, in our opinion, be this Court as the Appellate Court. We think, therefore, that this rule must be made absolute, and the order passed by the Subordinate Judge on the 1st June 1909 must be set aside, on the ground that he had no jurisdiction under the law to pass it.
4. The question then remains whether this Court should take any action now on the application which was made to it on the 20th of May 1909, or whether we are precluded from taking any action by the order passed by another Division Bench, to the effect that the application be put up when the appeal has been disposed of. In our opinion, the previous order made by the Division Bench does not dispose of the application, but merely postpones the date for its disposal, and we think that there is nothing to prevent us from dealing with that application if, in our opinion, the circumstances of the case render it necessary that we should do so. We think that this is a case in which the circumstances are such that some order on the application of the judgment-debtor, the defendant No. 1, should be passed now, and not be postponed until the appeal is disposed of. The judgment-debtor certainly might be placed in a very unfortunate position if, after the disposal of the appeal, the Court was to hold that it should confirm the decision of the Court of first instance that the defendant No. 1 was the sarbarakar, and then, refusing to extend the period during which he was directed by the Court to execute the kabuliyat, was to decide that he had forfeited his right under the decree to execute such kabuliyat. We think, therefore, that the best course for us now to adopt is to direct on that application that a rule be issued on the opposite party to show cause, within one week from this date, why that portion of the decree of the Subordinate Judge against the judgment-debtor should not be suspended on such terms as to this Court may seem fit until the appeal in this Court is disposed of. The petitioners in this rule are entitled to their costs, but, in the circumstances, we think that they should only be nominal.