LALMIYA SULAMHUSEN Vs. SHAIKH AHMED SHAIKH DAWOOD

JUDGEMENT

(1.) The appellants in this appeal are original defendants- judgment-debtors and the respondents are original plaintiffs-decree-holders. The plaintiffs obtained 8 decree for an amount of Rs. 2 33 0 and odd against the defendants and they have filed Regular Darkhast No. 74 of 1965 to execute that decree by attachment and sale of the immovable properties belonging to the judgment-debtors. The judgment-debtors have preferred an appeal being First Appeal No. 236 of 1965 and therein they applied for stay of execution of the decree. This Court imposed certain conditions on which the stay was granted but the conditions have not been fulfilled and the ultimate result is that stay has been refused. In the execution proceedings before the trial Court a stage has been reached where sale of immovable properties has been ordered and a proclamation of sale is already issued. At this stage the judgment-debtors preferred an Application under Order 41 Rule 6 of the Code of Civil Procedure praying that the sale may be stayed. The ground mentioned in the application was that the properties are of considerable value and the interest of the decree-holder would be sufficiently safeguarded if they are taken in security of the decretal amount The learned trial Judge having heard the parties made an order rejecting the application. It is against this order of rejection of the application for stay of the sale of the properties attached that an appeal has been brought which is numbered as First Appeal No. 35 of 1968. Thereafter a Civil Application No. 87 of 1968 hag been filed for an interim order staying the execution of the decree. This Civil Application was fixed for hearing en 18th March 1968 when with the consent of the parties it was decided that the appeal No. 35 of 1968 itself should be heard and decided. That is why this appeal vas taken up for hearing yesterday.

(2.) The short point for consideration in this appeal is whether when an application is made by a judgment-debtor for stay of sale of immovable properties in executing of the decree against which an appeal is pending the executing Court has a discretion to reject that application and refuse to stay the sale The learned trial Judge began with noting that the decree is for a large amount of Rs. 2 33 0 and odd. He then notes the fact that an application to stay the execution of the decree was made to the High Court but the judgement-debtors did not comply with the conditions imposed by the High Court and therefor the execution of the decree has not been stayed by the High Court. He then goes on to note that the decree has been obtained in January 1965. Then the learned trial Judge notes that there is no good ground for staying the execution of the decree. He also notes that that the decree-holders have spent an amount of Rs. 800.00 in connection with the sale proclamation. Having noted these facts he passed an order that the application is rejected. Having rejected the application the learned trial Judge made an order giving an opportunity to the judgement-debtors to apply for stay afresh on depositing Rs. 25 0 and en depositing the amount of cost incurred by the judgment-debtor. He further went on to say that if the conditions imposed by the Court for making a fresh application are complied with by the judgment-debtors that application will be considered on merits.

(3.) Order 41 Rule 6 of the Civil Proceedure Code is part of group of rules beginning with Rule 5 and ending with Rule 8. These Rules 5 to 8 relate to stay of proceeding and of execution of decree. Rule 5 lays down that an appellate Court may order stay of execution of a decree for sufficient cause. It also enable the trial Court that is the Court which passed the decree to order stay of execution of a decree on sufficient cause being shown if the application is made before the expiration of the time allowed for appealing from the decree. Rule 5(3) thereafter lays down certain conditions on fulfilment of which only the order for stay of execution can be make. Rule 5 would apply not only to stay of execution of decree but also to the stay further proceedings under a decree. Rule 5 will come into play. even when there is no actual application for execution pending in any Court. Rule 6 thereafter applies to those cases where an ap cation for execution of a decree the execution against is actually pending in the Court. If during the pendency of such an appeal an order is made for the execution of a decree the execution would be stayed under sub-rule (1) on sufficient cause being shown on requiring security for restitution of any property which may be or has he or has been taken in execution of the decree or for the payment of the value of such property and for the the due performance of the decree or order of the appellate Court. Then follows sub-rule (2) which reads as follows :