HANSRAJ Vs. SATNARAIN

JUDGEMENT

(1.) THIS is a revision by Hansraj against the order of the District Judge, ganganagar, and arises in the following circumstances:

(2.) HANSRAJ had brought a suit on a mortgage against Satnarain opposite party, and his 'ather. Prahlad Rai. 'in that suit Satnarain's mother acted as his guardian. That suit was decreed against both Prahlad Rai and Satnarain in 1951. About two years later, Satnarain brought the suit, out of which the present proceedings have arisen, through another next friend Kishangopal. It is immaterial for present purposes to mention the case put forward by Satnarain in detail. Suffice it to. say that Satnarain prayed that the decree passed against him in the earlier suit in favour of Hansraj be declared to be null and void, and his share in the house mortgaged be declared to be not liable to sale in that decree. Along with his plaint, Satnarain made an application which has given rise to the present proceedings. The last paragraph (Our translation) of that application reads as follows: "consequently the application is presented under Order XXXIX, Rule 1, and it is prayed that till the decision of the suit execution proceedings should be stayed, and defendant No. 1, namely Hansraj, be forbidden from taking further proceedings in execution. " it may be mentioned that the original decree was passed by this very court in favour of Hans-raj, and was under execution in the same court, Consequently, the court treated this application as one under Order XXI, Rule 29, even though it was mentioned in the last part of the application, translated by us above, that it was under Order XXXIX, Rule 1 Order P. C.

(3.) THE prayers were two-foia, namely. for stay of execution, which could, If at all, be made under Order XXI Rule 39, and (2) for temporary injunction which could, of course, be granted under Order 29, Rule 1. The notice, that was issued by the court on 10-3-53 to Hansraj, was to show cause why execution proceedings should not be stayed. This, in our opinion, clearly showed that the Court treated it as an application under Order XXI, Rule 29. Whether the court could do so or not will be considered by us shortly. The matter was gone into on the 20th of May, 1953, and the court passed an order on that date in the following terms : 'if the plaintiff (i. e. Satnarain) gave security for the decretal amount to the effect that if the suit is dismissed, the surety will pay the decretal amount, execution will be stayed, security to be deposited by the next date, otherwise execution would continue. " the next date was the 28th July, J953, and by this date no security had been deposited. Therefore, the court ordered on that day that as no security had been deposited, execution would continue.