BAZA AT AHMAD Vs. ALI HUSSAIN

JUDGEMENT

(1.) THIS rule is directed against the order of the Subordinate Judge staying the petitioner's execution. The respondent to this rule is a claimant who succeeded in a claim case under Order 21, Rule 58, but ultimately failed in an action brought by the decree-holder to establish his right to sell the property. The learned Judge appears to have proceeded under Order 41, Rule 6(2) but clearly having no jurisdiction either under the order or under Order 21, Rule 29. In the one instance the rule refers to the original decree from which an appeal is pending and in the other it is said that it may not be the original litigation in which a suit or appeal is pending, but it must be a case between the judgment-debtor and the decree- holder.

(2.) IN the present case it was neither, and therefore, it seems to me, in the absence of any provisions in the Code, that the only jurisdiction that the learned Judge could possibly have would be under inherent powers, and I am rather inclined to the view that he had such jurisdiction; but the question is whether in this particular instance lie could exercise that power. On the whole I come to the conclusion that he had no jurisdiction to pass the order because he put the unsuccessful claimant to no terms. IN the exercise of my discretion therefore in the matter, I set aside the order making the rule absolute with costs; hearing fee two gold mohurs.