CHAMPA DEVI Vs. SAT PRASHAN SINGH

JUDGEMENT

(1.) This is an application under Order 41, Rule 6, code of Code of Civil Procedure for the stay of the sale of a certain immovable property in the execution of the decree which is under appeal in this Court, Order 41, Rule 6(2), Code of Civil Procedure provides as follows:

(2.) The law, therefore, contemplates that an application should ordinarily be made to the court which has made the order the remedy for stay being thus available by means of an application to the court below, it is but proper and expendient that the work of this Court should not be increased by such applications.

(3.) Mr. Gopi Nath Kunzru learned Counsel for the applicant, states that such as application was made in the court below and was not granted. It appears from the affidavit filed in support of this application that the application that was made to the court below was an application for the stay of execution. Of course, the court below had no jurisdiction to stay execution of the decree. It has, however, often come to my notice that when an application is made in courts below for the stay of a sale of immovable property, in execution of a decree, such, an application is generally disposed of by an order to the effect that the applicant should move the High Court for a stay order. This is wrong, for while a lower court cannot stay execution of a decree pending decision of an appeal against that decree in this Court, it certainly make an order under Order 41, Rule 6(2), code of Code of Civil Procedure. Indeed it is its duty, when an application under that rule is made, to consider that application judicially and dispose it of by a proper order.