SANTOKH SINGH Vs. BHAI SIRI RAM

JUDGEMENT

(1.) The short point for decision is whether in the absence of special circumstances an unsuccessful litigant should be permitted to delay the passing of a final decree by filing an appeal from the preliminary decree and requiring that no further proceedings should be taken until his appeal is heard and decided.

(2.) The trial Court passed a preliminary decree in a suit for rendition of accounts and appointed a commissioner to examine the accounts. The defendant preferred an appeal to the District Judge and presented an application under Order 41, Rule 5 and Section 151, Civil P. C., for the stay of further proceedings before the local commissioner until such time as the appeal was heard and decided. The District Judge declined to order a stay and the defendant has accordingly come to this Court in revision.

(3.) Mr. D.K. Mahajan who appears for the defendant prays that the proceedings in the present case be stayed as it is an established practice of the Courts to stay proceedings in such cases until the appeal against the preliminary decree is determined. I regret I am unable to concur in tills contention. In the first place, I am not aware of any practice that the Court will, in every case, whether there arc particular circumstances in the case or not make an order for the stay of proceedings pending an appeal from the preliminary decree. On the contrary the practice appears to be that the Court will not stay the taking of the accounts pending an appeal -- ('Nerot v. Burnand', (1826) 2 Russel 56 (A) ) unless an irreparable injury would otherwise be caused -- ('Coleman and Co. Ltd. v. Stephen Smith and Co. Ltd.', (1911) 2 Ch D 572 at p. 580 (B) ). In 'In re Palmer's Application ( (1882) 22 Ch D 88 (C)) it was held that when a question of law has been decided on a preliminary objection, and an appeal has been brought, the Court will not in general stay the trial of the issues of fact pending the appeal. In dismissing the application to stay the proceedings pending an appeal to the House of Lords, Cotton L. J. observed as follows: