BANK OF INDIA Vs. NHAVELKAR

JUDGEMENT

(1.) BY this Revision Application, the Petitioner-Bank seeks to inpugn the order dated 30th July, 1991 passed below exhibit 34 in Special Darkhast No. 38 of 1990. The Petitioner-Bank had filed a suit against the respondents and has obtained the decree against the respondents. The Bank thereafter sought execution of the Decree. In execution of the Decree the Executing Court has put the movable property belonging to the judgment Debtor on auction several times. However, as nor reasonable bid was received, the auctions were postponed. The Judgment debtor i. e. Respondents herein have preferred an Appeal to this Court. However, no stay has been obtained therein. The property which is sought to be sold in execution of the decree is machinery which was attached on 19th December, 1980. As on four occasions the property could not be sold in execution for want of reasonable price, the Petitioner-Bank sought sale of the same by a fresh auction which was opposed by the respondents. It was the contention of the respondents that they are ready and willing to give security as required by the Court in terms of Order 41 Rule 6 of the Code of Civil Procedure, 1908. The trial Court was impressed by the stand taken on behalf of the Respondents and directed the property attached to be released in favour of the Respondents on their furnishing a solvent security to the extent of the amount of the decree alongwith the interest within five days and thereafter the execution would be stayed. Pursuant to this Order, the Respondents have furnished the requisite security. Machinery attached has been released in favour of the respondents.

(2.) MR. Dalvi, Counsel for the Petitioner contends that the Executing Court could not have invoked the provisions of Order 41 Rule 6 of the Code of Civil Procedure, 1908, to stay the auction of the attached machinery. It is his contention that having a look at the provision of Order 41 Rule 6, it is clear that the said provisions can be, invoked in the event property is being sold during the pendency of an appeal and in such case the Court which carries out the execution can call on the decree Holder and/or persons who may purchase the property to give security for the restitution of the property sold in the event the Appellate Court reverse the Judgment or decree of the Trial Court. He points out that in the instant case, it is the Judgment debtor who has applied and which is not possible and/or permissible under Order 41 Rule 6. He, therefore, contends that the Order of the trial Court has to be set aside.

(3.) MR. Bhadkar appearing for the respondents contends that on reading of Order 41 Rule 6, it is possible to hold that even a judgment Debtor can be called upon to give such security and in the event the Judgment debtor gives such security the execution can be stayed.