ANUP SINGH Vs. JASPAL SINGH AND BROS

JUDGEMENT

(1.) THIS revision petition is directed against the order dated November 19,1991 of the executing court whereby an application under Order 41, Rule 6 (2) of the Code of Civil Procedure moved by the judgment debtors has been dismissed.

(2.) FEW facts giving rise to the controversy may be noticed as under:m/ s. Jaspal Singh and Brothers, Commission Agents filed a suit for recovery of Rs. 8,79,168. 30 paise including interest against the petitioners and others. Suit was decreed on August 12,1989. Regular First Appeal against the judgment and decree of the trial Court is pending final disposal in this Court. In appeal, an application was moved by the judgment debtors for staying the execution of the decree. The application was considered by N. C. Jain, J. on January 9,1990. His Lordship passed the following order:

(3.) LEARNED counsel for the petitioners relying upon Shankar Dass v. Kasturi, A. I. R. 1925 Lab. 69; Jangir Singh Ganda Singh and Ors. v. Mst. Nihai Kaur, A. I. R. 1965 Punj. 438, Prahlad Kumar and Anr. v. Avtar Krishan' (1985-2) 88 P. L. R. 491 contended that the executing Court erred in dismissing the application only by having regard to the order passed by this Court in an application under Order 41, Rule 5 of the Code for staying the execution of the sale. The executing Court could not have dismissed the application only on the aforesaid ground. It ought to have passed an appropriate order in terms of sub-rule (2) of Rule 6 of the Order 41. Learned Counsel further argued that it was imperative on the executing Court to stay sale of property on such terms as to giving security or otherwise as it could think fit, until the appeal was disposed of. Since the property of the judgment debtors bad already been attached, this in itself was a sufficient security to satisfy the decree and, therefore, there should not have any hitch for the executing Court to stay sale thereof till the decision of the appeal. After hearing learned counsel for the parties, I find no merit in the petition. Though the executing Court dismissed the application under Order 41, Rule 6 (2) of the Code primarily on the ground that the order of this Court, as reproduced above, had not been complied with by the judgment debtors and though it did not go into the matter whether the sale was liable to be stayed on terms as to giving security or otherwise until the decision of the appeal by this Court, yet no much fault can be found with the conclusion arrived at. It could not be disputed by learned counsel for the petitioners that the sale could be stayed by the executing Court under Order 41, Rule 6 (2) of the Code on terms as to giving security or otherwise as the it might think fit. True, the executing Court has not put any such terms as the application was dismissed only on the ground that earlier order passed by this Court had not been complied with, but this Court while considering the matter can certainly dispose of the application on such terms as to furnishing security or otherwise as the facts of the case may require. The decree in this case is a money decree and the amount in terms of the said decree, as on today, would come to about 20 lacs. Nothing has been paid till date by the judgment debtors and only their property i. e. land measuring 38 Bighas 12 Biswas has been attached which was sought to be sold for the recovery of the decretal amount. The aforesaid land comes to about eight acres and the market value thereof as on today, in my view, cannot exceed more than ten lacs, it being an agricultural land. Even if it be accepted that the sale of the property should have been stayed on the application of the judgment debtors, yet the minimum the were required to do was to furnish security for the entire decretal amount in terms of sub rule (2) of Rule 6 of Order 41. The property already attached which could at the most be treated as security, falls short of security which the judgment debtors are required to furnish. I offered the petitioners to furnish additional security for the entire amount but learned counsel for the petitioners after consulting his clients showed inability to do so. In these circumstances, no fault can be found with the order passed by the executing Court. Even the judgments relied upon by the petitioners and noticed above, do not come to their rescue, for, there is no dispute with the proposition of law laid down in the aforesaid three judgments, the provisions of Order 41, Rule 6 (2) of the Code being mandatory. But intrinsically, the question involved in the present case is, whether sale has to be stayed on judgment debtors's furnishing security or on what terms. In other words, whether the Court can impose certain terms as to furnishing security or otherwise on the judgment debtors before granting stay of sale of property. Such a matter happened to be considered by this Court in Mst. Prito v. Iqbal Singh, (1978) 80 P. L. R. 284 wherein it was observed that while ordering stay of sale of immoveable property under Order 41 Rule 6 (2) of the Code, the Court can order the judgment debtors to deposit the decretal amount in cash as a condition for stay of sale of property in execution and that there was no limit to the discretion of the Court in imposing terms. It was further observed that the Court is not without power to deal with a vexatious judgment debtor if it is obliged to stay the sale when such an application is made. After making these observations, the sale of the attached property was stayed on the condition of judgment debtors' depositing the entire decretal amount in Court which amount was permitted to be withdrawn by the other side upon furnishing security to the satisfaction of the executing Court.