RAMAPPA MALLAPA Vs. RUDRAGAUDA

JUDGEMENT

(1.) AFTER stating facts the judgment proceeded: ] As regards civil Appln. No. 1500 of 1949, when the matter was last argued, Mr. Gumaste for the opponent conceded that the learned Registrar has power to grant stay of proceedings under Order 41, Rule 5, C. P. C. , but at the hearing of the appln. he contends that the learned Registrar had no jurisdiction to make an order under the provisions of Order 41, Rule 5. Now, under the rules of the High Court of Judicature at Bombay, Appellate Side, 1936, power is given to the Registrar to dispose of certain applns. and Rule 11 (n) refers to applns. for orders under Order 41, Rules 5, 6 and 10, C. P. C. , and the question is whether the learned Registrar has power to make an order staying proceedings pursuant to a preliminary decree. It is not disputed that with respect to the decree for a sum of Rs. 7,500, the learned Registrar would have such power because that would be in respect of stay of execution.

(2.) AS the question is one of practice, I have ascertained from the office as to how the practice stood; and I am informed that the Registrar deals with similar applns. though it is said that there is some doubt as to whether the Registrar has power to act under Order 41, Rule 5, C. P. C. Now, Order 41, Rule 5 (1), is in the following terms : "an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Ct. may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Ct. may for sufficient cause order stay of execution of such decree. "

(3.) MR. Gumaste for the opponent contends that the learned Registrar has power to deal with in appln. for stay of execution of a decree but has no power to deal with an appln. for stay of proceedings. Now, a plain reading of Rule 5 (1) of Order 41 suggests that the Appellate Ct. has got a two-fold power. Under the first part of Rule 5 (1), the Appellate Ct has got power to stay proceedings under a decree; and under the latter part of the rule, the Appellate Ct. has power for sufficient cause to order stay of execution of such decree. It is noticeable that the language of Section 545, C P. C. (Act XIV [14] of 1882) was different, and it is apparent that the words. "an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Ct. may order" are new. This suggests that prior to the enactment of the Code in its present form, the Appellate Ct. had power to stay further proceedings presumably under Section 151 of the Code, and the Appellate Ct. had power to direct stay of execution of a decree under the then Section 545 of the Code of 1882. Now, Mr. Gumaste for the opponent contends that under the first part of Rule 5 (1) of Order 41, the learned Ragistrar has no such power. I find it difficult to accept this argument, having regard to the language of Rule 11 (n) of the High Court. Appellate Side, Rules, 1936, which is "applications for orders under Order 41, Rules 5, 6 and 10. " If the Appellate Ct. has such power--and I hold it to be so--, the language of Rule 11 (n) would show that the Registrar too would have such power. That Rule 5 (1) of Order 41 contains a two-fold power is apparent from the word "nor" which connects the first part of the rule with the second part; and, in my opinion, the introduction of the words "an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Ct. may order" goes to show that the Legislature intended to confer upon the Appellate Ct. the power to stay further proceedings. Now, decrees are of two kinds, either preliminary or final; or partly preliminary or partly final. The present case is of a decree which is partly preliminary and partly final. Therefore, the Appellate Ct. would have power to stay further proceedings under the first part of Rule 5 (1) of Order 41, and the Appellate Ct. would have power to direct stay of execution with respect to that part of the decree under the latter part of the rule. If the Appellate Ct. has such power, I am not prepared to hold that that power has not conferred on the Registrar by virtue of Rule 11 (n) of the rules already cited.