CHELA RAM ETC Vs. RAM CHAND ETC

JUDGEMENT

(1.) In a suit brought by Ram Chand and others, a preliminary decree for redemption of land on payment of Rs. 1347.70 np, was passed in their favour by the Senior Subordinate Judge, Hissar, on 31st July, 1961. The defendants, Chela Ram and others feeling aggrieved have come up in appeal to this Court. They applied under Order XLI, rule 5 of the Civil Procedure Code, and obtained an ex parte order staying the passing of the final decree. Now the respondent decree-holders have applied for vacating the stay order. It is contended on their behalf that as they had deposited the entire redemption money in Court, they were entitled to possession of the property. Reliance in this connection has been placed upon Bawa Tirath Singh V/s. Prem Nath and others, 1961 63 PunLR 461 where Pandit, J. refused to stay the proceeding for the passing of the final decree despite the fact that an appeal against the decree for redemption had been preferred by the plaintiff mortgagors.

(2.) In opposing the prayer for vacating the stay order, the counsel for the defendant mortgagees has contended that it was a general rule that the proceedings for the final decree should be stayed pending the decision of the appeal against the preliminary decree. Reliance in this connection has been placed upon Diwan Chand and others V/s. Nanak Chand, 1932 AIR(Lah) 271 Karam Elahi and another V/s. Mst. Amir-un-nisa and others, 1930 AIR(Lah) 108 (1 , Rai Sahib Lala Rup Narain V/s. Shibbu Mal and another, 107 Indian Cases 486 and Chhote Lal and others V/s. Rai Bahadur Sultan Singh, III Indian Cases 383. Though in the first two cases it was observed that further proceedings should generally be stayed yet in the other two cases, there is no reference to any general rule or practice of the Court. In III Indian Cases' 383, the Court was dealing with a preliminary decree passed in a suit for rendition of partnership accounts. In granting the stay, Addison, J. merely observed :-

(3.) These authorities do not lay down any general rule nor do they disclose that it was the settled practice of the Lahore High Court to stay proceedings for final decree where an appeal has been preferred against a preliminary decree. So far as this Court is concerned, no such rule or practice is recognized. On the contrary, in a recent case, 63, P.L.R. 461, Pandit, J. has observed that no such general rule has been laid down for stay of proceeding in such cases.