NIHAL CHAND Vs. MADAN LAL AND ORS.

JUDGEMENT

(1.) IN this appeal the sole question for determination is as to whether it was open to the executing Court to have imposed terms by way of directing the judgment -debtor to deposit Rs. 6,000 out of the decretal amount of Rs. 9,050 before sale of the attached property under Order XLI Rule 6(2) of the Code of Civil Procedure, was stayed.

(2.) THE facts of the case are very simple and may be stated briefly. Madan Lal, obtained a decree for the recovery of Rs. 9,050, including interest, against Nihal Chand and others, judgment -debtors, on 24th December, 1962. Nihal Chand, judgment -debtor preferred an appeal against the decree which is pending in this Court. No stay of execution of the decree was allowed by this Court under Order XLI Rule 5 of the Code of Civil Procedure during the pendency of the appeal. The judgment -debtor had one -third share in house No. BV -317, Division No. 3, situate in the city of Ludhiana, half of which, that is, one -sixth share, was got attached by the decree -holder in execution proceedings for the recovery of the decretal amount which practically comes to about Rs. 10,000. In the application under Order XXI Rule 66 of the Code of Civil Procedure, which had been made in order to get the proclamation of the intended sale prepared, the decree -holder assessed the value of one -sixth share got attached by him at Rs. 10,000. Nihal Chand judgment -debtor then made an application on 29th November, 1968, purporting to be under Order XLI Rule 6 of the Code of Civil Procedure, praying that the sale of the attached property be stayed. It was asserted by him that the value of the attached property was not less than Rs. 20,000. Rule 6 of Order XLI may be quoted hereunder for facility of reference:

(3.) MR . Aggarwal also contends that true meaning and spirit of Rule 6(2) of Order XLI is that the judgment -debtor should not be called upon to deposit the full decretal amount, and may be, in some cases, not even a substantial portion thereof. Reliance in this regard is placed on a case reported as Shankar Das and Anr. v. Kasturi Lal and Ors. : A.I.R. 1925 Lah. 69, where Martineau, J., had held that an order of the executing Court requiring deposit of the whole of the decretal amount before staying the sale of the attached property was against the spirit of the rule, as it would be tent amount to refusing the relief intended to be given to a judgment -debtor under Order XLI Rule 6(2). Mr. Aggarwal also relied on some observations made by a single Judge of Bombay High Court in Ganesh Laxman v. Raosaheb Premchand Ichharam : A.I.R. 1956 Bom. 249. The facts of that case are distinguishable. It was a revision petition moved by the decree -holder against the order of the Subordinate Judge, who had dispensed with the imposition of any terms on the judgment -debtor while staying the execution of the decree without ascertaining as to whether the property under attachment which was sought to be sold was of a value sufficient enough to cover the decretal amount. In this context Gajendragadkar J., held that it was open to the decree -holder to invoke the revisional jurisdiction of the High Court. In refusing to require the judgment -debtor to furnish security or to submit to some other suitable terms, the executing Court had clearly overlooked the material provisions in Sub -rule (2).