LAXMAN OMANA MUCHANDI Vs. RAMACHANDRA OMANA MUCHANDI

JUDGEMENT

(1.) In Special Suit No. 42 of 1959 in the Court of the Civil Judge, Belgaum, there was a decree against the defendant for a sum of Rs. 2,520/- towards mesne profits and costs payable by him. From that decree, an appeal was preferred to this Court and is still pending. In an execution application presented by the decree-holder, there was an order made by the executing court on September 19, 1960, that the property of the judgment-debtor which had been attached should be sold. On March 10, 1961, the judgment-debtor made an application to the executing court which is also the court which passed the decree for a slay of the sale under the provisions of Rule 6 (2) of Order XLI of the Code of Civil Procedure.

(2.) Meanwhile, the judgment-debtor had also made an application for an order that the execution of the decree under appeal should be stayed, and, an interim order was made by this Court on February 7, 1981, on that application under Rule 5 of Order XLI of the Code of Civil Procedure. The condition subject to which that order was made was that the judgment-debtor should deposit the amount of the decree. On his neglecting to do so within the time allowed, the interim stay order was dissolved. The executing Court dismissed the application presented by the judgment-debtor under Rule 6 (2) of Order XLI of the Code of Civil Procedure, and, the order which it made reads: "The High Court is seized or the matter. The decretal amount is not paid within the time given by the High Court, This application cannot be considered by this Court. Hence it is rejected. Intimate High Court about non-payment of decretal amount." From this order, the judgment-debtor appeals.

(3.) That the remedy of the judgment-debtor was only by way of a revision petition and not by way of an appeal is the preliminary objection raised by Mr. Mandagi for the decree-holder. There is a conflict of authority on this question, the High Court of Calcutta taking the view that a revision petition is the only remedy, the High Court of Madras taking the view that an appeal lies. It is, however, not necessary to express any opinion on this question since, if the order made by the Court below cannot be sustained, it could be set aside by us in the exercise of our revisional jurisdiction even if this appeal is incompetent. So we should proceed, in my opinion, to consider the sustainability of that order.