RAM NATH SINGH Vs. RAJA KAMLESHWAR PRASAD SINGH

JUDGEMENT

(1.) There appears to be a difficulty in dealing with this application as if it were one under Order XLI, Rule 5, of the Code of Civil Procedure: for, through an apparent oversight, there has not been an affidavit put in, as required by the Rules; and although that might in this case not be of much importance, because the facts stated in the petition are not now disputed before us there is another objection, namely, that it has not been shown in the terms of the Order XLI, Rule 5, that the conditions mentioned in Sub-section 3, (a), (b) and Co) have been fulfilled. It is open to us, however, and I think we should deal with this matter by way of revision, under Section 115, Civil Procedure Code, of the order which was passed by the Subordinate Judge on the 7th of December 1910: for that order appears to be clearly erroneous. Under Order XLI, Rule 6(2), the Court in the case of an order for sale of immovable property in execution of a decree is bound, where an appeal is pending from such decree, to stay the sale on the application of the judgment-debtor, on such terms as to security as the Court thinks fit, until the appeal is disposed of. No doubt, under the terms of that order the Court could make it a condition of the order for stay of sale, that the money decreed should be deposited in Court in cash. But the actual order which was passed in this case does not appear to be an order passed under Rule 6(2). We have been asked to read it as if the Subordinate Judge had said that he was willing to stay the sale on the application of the judgment-debtor, on condition of the latter depositing the decretal money. But that is not what he has said. What he says is this,--"I see no sufficient reason to stay execution. It is a rent decree. The judgment-debtor can deposit the decree money and that money may be detained until further orders." That was not an order such as he was entitled to pass in the terms of the Rule 6; and we must, therefore, deal with this matter with reference to the terms of Rule 6. The applicants are prepared to offer as security the holding which is sought to be sold and over which the rent now claimed is a first charge. Another holding of 83 bighas is offered as security to the lower Court after the issue of the Rules nisi by the High Court and a mortgage bond executed by a 3rd party in favour of the applicant, and also a sum of Rs. 1,000 in cash. This appears to us to be, in the circumstances, reasonable security; and we accordingly direct that the sales be stayed, pending the appeal, upon the applicants furnishing the security mentioned, which should stand as security for both decrees.

(2.) Of the said sum of Rs. 1,000, Rs. 700 must be deposited on Monday next, the 23rd January 1911; and the balance Rs. 300 within ten days from that date. The mortgage bond must be registered and put in within seven days from the above-mentioned date.

(3.) If the said sum of Rs. 700 be not deposited on Monday next, both the sales will take place.