PHUSIA Vs. MOHAMMAD TASADDUQ HUSAIN KHAN

JUDGEMENT

(1.) This is an application under Order XLI, Rule 5, Civil Procedure Code, for stay of execution of a decree for possession of land by demolition of certain structures standing thereon. It is admitted that the decree has not yet been put under execution.

(2.) Learned counsel for the decree-holder-opposite party has raised a preliminary objection to the maintainability of the application, mainly on the ground that no application for execution having been made, there is no execution which can be stayed; but no authority, except the practice said to have been followed by a learned Judge of this Court, has been cited in support of this contention. On the other hand, learned counsel for the judgment-debtor-applicant has urged that, under Rule 5 aforesaid, an appellate Court has, for sufficient cause, power under the said rule, to stay execution of the decree appealed against whether an application to execute it has been made or not. In support of his contention, learned counsel for the applicant has invited my attention to a decision of the Bombay High Court in Laxman Ramchandra v. Shridhar Vaman (57 Bom. 202).

(3.) Sub-rule (1) of Rule 5 of Order XLI, Civil P. C. is in these terms : "An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal hiving been preferred from the decree; but the appellate Court may for sufficient cause order stay of execution of such decree." Learned counsel for the opposite party has asked me to interpret the phrase "stay of execution of such decree", in the sub-rule quoted above, to mean a pending and not any contemplated execution. His contention is that unless an application for execution of a decree is made, there can be no execution of the decree, and no question of stay of execution of the decree. He has also invited my attention to the language of Sub-rule (3) of Rule 5, which, according to his contention, also contemplates cases where the decree is under execution.