JUGAL PRASAD MISSIR Vs. JADUBAND NARAYAN MISSIR

JUDGEMENT

(1.) This application in revision is directed against an order passed under Order 41, Rule 6, Civil P.C., staying sale of the mortgaged property in execution of a mortgage decree. The mortgage decree is for Rs. 15,534-10-6. The defendant has preferred an appeal to this Court against this decree, valuing it at Rs. 3151-2-6 only, that is to say, the appeal is directed against the interest decreed by the Court below. The executing Court has stayed sale of; the mortgaged property pending disposal of the appeal on condition that the judgment-debtor should furnish security for further interest for one year. Security has been furnished in accordance with this order.

(2.) Mr. Khurshed Husnain on behalf of the petitioners contends that the appeal being directed not against the entire decree but only against a part of it, the Court below should not have stayed the sale of the entire mortgaged property. This argument overlooks the fact that the mortgage decree is not separable. Order 41, Rule 6, Clause (2) of the Civil P.C., runs as follows: Where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.

(3.) Mr. Khurshed Husnain contends that the Court was not bound to stay the sale, and in support of this contention he relies upon a decision of a single Judge of the Allahabad High Court in Har Narain V/s. Sadhu Govind Rai . Kendall J. in that case held that Order 41, Rule 6(2) of the Civil P.C., was not intended to impose on the Court which ordered the sale an obligation to stay the sale pending an appeal from the decree, merely because the property which is to be sold is immovable property and security is given. With all respect to the learned Judge, I must say that this is against the express provision of the rule itself, which says that the sale shall be stayed. Having regard to the fact that the Court below has taken security for one year's further interest and that the mortgage decree is indivisible, I do not consider I should interfere in revision with the order of the Court below.