JANKI DAS AND ANR Vs. SHEO PRASAD

JUDGEMENT

(1.) This is an application for stay of execution of a final decree passed in a suit based on a mortgage. A preliminary decree had been previously passed. The mortgagor preferred a first appeal to this Court impugning the correctness of the preliminary decree. In the meantime an application was made by the mortgagor to the Court of first instance for the preparation of a final decree. The mortgagor then made an application to this Court praying for stay of the proceedings in the Court of first instance for the preparation of the final decree. It was held by a learned Judge of this Court that proceedings for the preparation of a final decree could be taken pending an appeal from the preliminary decree. A final decree has since been passed by the Court of first instance and the present application is for stay of execution of the final decree.

(2.) A preliminary objection has been taken by the learned advocate for the mortgagee (opposite party) that this Court has no power to order the stay of the execution of the final decree which is not itself under appeal. It is contended that in so far as the appeal pending in this Court is from the preliminary decree, which is not itself capable of execution no order for stay of execution can be passed under Order 41, Civil P.C., The contention is so far correct that an order for stay of execution of the final decree cannot be passed under Order 41, Civil P.C., but the powers of this Court as regards stay of proceedings pending in the Court below are not exhaustively defined by Order 41, Civil P.C., If having regard to the ends of justice, it is expedient that the execution of the final decree should be stayed pending the appeal from the preliminary decree, this Court has got ample power to stay it under Section 151, Civil P.C., It cannot be denied that any interference with the preliminary decree in the appeal there from will have the effect of the final decree being vacate and that if execution of the final decree is allowed to proceed rights may come into existence before the disposal of the appeal from the preliminary decree. In order to avoid possible complications we think it necessary in the ends of justice that the execution of the final decree be stayed pending the appeal from the preliminary decree. It may be and generally is expedient that proceedings for the preparation of the final decree should not be stayed pending an appeal from the preliminary decree because the mere passing of a final decree will not in any way affect the rights of the parties to the appeal from the preliminary decree. On the other hand, if the preliminary decree is affirmed on appeal some further time will be needed for proceedings leading to the final decree.

(3.) We are clearly of opinion that this Court has power under Section 151, Civil P.C., to order stay of execution of a final decree during the pendency of an appeal from the preliminary decree. We hold that the preliminary objection has no orce, and is accordingly overruled.