ANANDI PRASHAD Vs. GOVINDA BAPU

JUDGEMENT

(1.) 1. This is an application asking that my learned predecessor's order staying execution be modified by imposing conditions. Execution was stayed exparte on 26th October 1933 without any orders about security and compensation such as are usual in such cases being passed. This application asks that this be now corrected, especially in view of the very long date 20th August 1935, which has been fixed for the hearing.

(2.) THE ordinary rule is that execution is not to be stayed pending an appeal. Order 41, Rule 5(1) expressly says so. Then again, although the Court is given power to stay execution it is subject to certain strict limitations,. and Order 41, Rule 5(3) states very definitely that no order for stay shall be made unless those conditions are fulfilled. It is true ex parte orders staying execution are often made on insufficient grounds, and that they sometimes go unchallenged. But this is no justification for the practice, and still less a reason for refusing to scrutinise an order when it is challenged. Therefore, when an order is challenged it behoves the Court to scrutinise the petition for stay with care, and see that the provisions of the Code are not transgressed; and the burden is on the appellant to show that substantial loss may result unless execution is stayed: Srinibash Prasad Singh v. Kesho Prasad Singh (1911) 88 Cal 754. It is clear the words "substantial loss" cannot mean the ordinary loss to which every judgment-debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case, and since the Code expressly prohibits stay of execution as an ordinary rule, it is clear the words "substantial loss" must mean something in addition to and different from that. Decree holders also have their rights, although that usually seems to be forgotten, and the Code very definitely prohibits any interference with those rights except for special and substantial reasons which the person seeking a stay must disclose. It is not enough merely to repeat the words of the Code and state that substantial loss will result; the kind of loss must be specified, details must be given, and the conscience of the Court must be satisfied that such loss will really ensue, Dhera Mal v. Haidar Shah AIR 1921 Lah 24, Srinibas Prasad Singh v. Kesho Prasad Singh (1911) 88 Cal 754 and Nanda Kishore Singh v. Ram Golam Sahu (1913) 40 Cal. 955. This necessarily involves the filing of an affidavit in practically every case, and a scrutiny of the allegations made in it when they are challenged.

(3.) ON this solitary sentence, unaccompanied by an affidavit an unconditional order of stay was obtained and the appeal was fixed for hearing a year and ten months ahead. It is hardly to be wondered that the decree-holder wants that order to be modified. It is also clear that no reason whatever has been disclosed to justify an order for stay.