P.L. MORADA Vs. S.D. BAKSHI

JUDGEMENT

(1.) I had the advantage of perusing the judgment of my brother Thakur, J. While agreeing with the order rejecting the petition for stay, I would like to add a few lines giving my own reasons for rejection of that petition.

(2.) Order 41, Rule 5, Civil Procedure Code, will not be applicable for the reasons that the High Court is not the appellate court against the order sought to be appealed in the Supreme Court and that the High Court cannot be considered to have passed the decree of which execution is sought to be stayed. In fact, the High Court in appeal has only rejected the objection under Sec. 47, Civil Procedure Code, against execution. It is the order of the Controller which can be executed and, therefore, the High Court's order cannot be stated to be an order or decree sought to be executed as such.

(3.) As regards Sec. 151, Code of Civil Procedure, if Order 45, Rule 13, Code of Civil Procedure, is applicable no assistance can be obtained from Sec. 151 of the Code. I am in respectful disagreement with the decision of my brother Judge in as much as he has held that the order of interim stay passed by this Court was without jurisdiction. Such interim stay pending an application for leave to appeal which could not be filed for reasons stated by the Applicant was an order capable of being made under Sub -rule 2(d) of Rule 13 of Order 45, as the purpose behind the order was to place the party seeking assistance of the Court in a position to file an application for leave to appeal which could be granted or refused further entitling him to prefer an appeal before the Supreme Court. In the alternative, if Sub -rule 2(d) of Rule 13 of Order 45 was not applicable for making the order of interim stay, then Sec. 151, Code of Civil Procedure, can easily be brought in to give the immediate relief, and hence the order of the Division Bench cannot be considered to be without jurisdiction.