YELAMANCHILI SATYANARAYANAMMA Vs. YELAMANCHILI NAGESWARA RAO

JUDGEMENT

(1.) The simple point that arises for consideration in this Civil Miscellaneous Appeal is whether Order 41, rule 6(2) of the code of Civil Procedure would apply even after sale in execution is held and even after a petition for stay of execution on appeal has been rejected.

(2.) The facts of the case are briefly as follows: The appellant before me brought a suit for maintenance in O.S. No. 81 of 1951 on the of the subordinate Judge's court Gudivada, against the respondent herein. This suit was decreed. Against the judgment and decree in said suit, the respondent preferred an appeal to this High Court which is now pending. During the pendency of the appeal, the respondent filed a petition C.M.P. No. 8230 of 1953 for stay of execution of the decree of the lower Court which application was rejected on the merits by an order of this court dated 19.10.1953. As say of execution of the maintenance decree in favour of the appellant had been rejected, the appellant brought the properties of the respondent to sale in execution of the decree in her favour. The sale was held and just when it was about to be confirmed, the present application out of which the Civil Miscellaneous Appeal arises, I.A. No. 362 of 1954, was put in under Order 41, rule 6(2), Civil Procedure code, praying for stay of the sale proceedings in execution of the decree. The learned Subordinate Judge allowed the application and directed the applicant (respondent herein) to furnish security for a sum of Rs. 2250 an amount which is supposed to represent according to the Subordinate Judge, the profits on the property sold, apparently for the purpose of safeguarding the interests of the auction purchaser.

(3.) The order of the learned Subordinate Judge directing stay of execution of the decree in favour of the appellant herein pending the appeal before this Court, when on merits this Court had refused to grant the stay, is clearly without jurisdiction and illegal. When an appeal is preferred, it the appellate Court that becomes seined of the entire matter and it is the appellate Court that is competent to deal with all matters pertaining to the appeal including any incidental, interlocutory or ancillary matters such as stay of execution, pending disposal of the appeal, etc. Order 41, rule 5(1), Civil Procedure Code, makes the position very clear. Order 41, rule 5(2) gives power to the Court which passed the decree to pass tentative orders before the expiration of the time allowed for appealing therefrom, and in the nature of things, the jurisdiction conferred clause(2) of rule 5 vanishes the the moment the appeal is filed. Similarly, power is given to the Court of the first instance to take security for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the appellate Court. Similarly clause (2) of rule 6 is an additional provision which provides that a Court which had made an order for the sale of immoveable property in execution of a decree against which an appeal is pending should stay sale of on such terms as it deems fit pending the disposal of the appeal. Powers exercisable either by a Court which had passed the decree under rule 6(1) or by a Court which had made an order for the sale of immoveable property under rule 6 (2) could only be exercised provided the matter had not been considered earlier by the appellate court; so that where an appellate Court had refused to order stay of execution of the decree against which an appeal is pending before it, pending disposal of that appeal, the Court which passed the decree as well as the Court which had made the order for the sale of immoveable property in execution of the decree must in law, be deemed to have become functus officio and could not exercise the powers contemplated by the two sub-rules of rule 6. To hold otherwise would mean that while the appellate Court considers that there was no justification for stay of execution of the decree pending the disposal of the appeal, and that the decree-holder should have the full benefit of the decree by way of execution, notwithstanding the pendency of the appeal, the Subordinate Court could by making its own order nullify the effect of the order of the appellate Court and grant a relief to the judgment-debtor which had been expressly negatived and refused by the appellate Court. It is an elementary rule of interpretation of statutes that they should not be interpreted in such a way as to result in to conflict of jurisdictions and particularly a conflict between a superior Court and a Subordinate Court.