SAPHAR SITAPATI RAO Vs. CHITTALURI SITABAYAMMA

JUDGEMENT

(1.) In this case we may omit from consideration all the proceedings connected with stay of execution under Order 41, Rule 5, Civil Procedure Code. The High Court granted stay of execution on the defendant depositing Rs. 1,300. She failed to do so in time. When the defendant did deposit it, plaintiff attached it as money due under the decree and the whole of the subsequent proceedings show that it was treated, as indeed it was bound to be, as money paid in execution of the decree. The defendant asked the Subordinate judge in E. A. No. 726 of 1931 to take security for this sum of Rs. 1,300 before handing it over to the plaintiff. The order begins: This is a petition asking the Court to take security from the respondent for Rs. 1,300 deposited in Court in part satisfaction of the decree amount.

(2.) It is clear therefore that this was an application under Order 41, Rule 6, and it was entirely discretionary on the part of the Court to grant or refuse it. The reason alleged for taking security was that the plaintiff was a pauper. The learned Subordinate Judge unfortunately seems not to have grasped the distinction between proceedings in stay of execution under Order 41, Rule 5 and proceedings when the decree was being actually executed. After referring to several of the stay proceedings which were really irrelevant, he stated: I doubt very much whether, under these circumstances, this Court has jurisdiction to order security being taken from the respondent. Hence I dismiss the petition.

(3.) This was on the 6 November, 1931. For some reason or other the amount does not appear to have been paid out. No proof has been adduced on the allegation that there was a revision petition against this order to the High Court and that it was dismissed, although this was mentioned in the counter-affidavit put in against the next petition. It is very unlikely that had there been such a revision petition disposed of by the High Court and shown to the Court it would not have been mentioned by the learned Subordinate Judge in the order now appealed against. The number of the Civil Revision Petition is not quoted and there is no means of verifying it. I must take it then that it has not been proved that the Subordinate Judge's order of 6 November, 1931, dismissing the petition to take security has been carried further or objected by way of revision; or that any order in revision has been passed on it. On 27 November, 1931, the defendant again put in an application under Order 41, Rule 6, Civil Procedure Code, again asking that security should be taken for Rs. 1,300 from the plaintiff as he was a pauper. No further reasons are given than what were stated in the previous petition. The application is not called one for review but it is obviously such in substance. In the counter to this it was objected that the matter was res judicata owing to the previous order. The learned Subordinate Judge has dealt somewhat obscurely with the matter of res judicata in paragraph 2. He first points out that the present application is made under Order 41, Rule 6, and that the scope of that section is quite different from that of Order 41, Rule 5, with reference to stay of execution. In this of course he is perfectly correct. Then he goes on to say: No doubt on a previous petition I entertained the opinion that when once the High Court passed the order which had the ultimate effect of dismissing the stay petition, this Court had no jurisdiction to entertain an application for further stay (vide the order of this Court, dated 6 November, 1931). Whatever might be said as regards the jurisdiction of the Court to entertain a petition for stay of execution of the decree on account of the High Court having already passed orders on such an application, there can be no doubt, I think, as regards this Court having jurisdiction under Order 41, Rule 6, to demand security from the decree-holder, in case it is found that he is not solvent enough to refund the money. I therefore disallow the contention raised by the counter-petitioner on this point and I allow the petition.