Angad Ram Ram Singh vs Gainda Mal Charanji Lal and Others

Shamsher Bahadur, J.—Gainda Mal Charanji Lal obtained a decree for Rs. 7744/1/6 on 20th of March, 1956 with costs against Angad Ram Ram Singh. A regular first appeal has been instituted by the judgment-debtor in this Court from this decree.

Though the decree was granted by the Subordinate Judge, Rupar, the execution proceedings were transferred at the instance ef the decree-holder to Kandaghat where two shops and one house belonging to the judgment-debter nave been attached. The judgment-debtor applied under Order 41, Rule 6(2) of the Civil Procedure Code, to have the sale of these proceedings stayed. On the condition that the judgment-debtor deposited half the decretal amount in cash in Court the order of sale was stayed by the executing Court. The judgment-debtor feeling aggrieved from this order has come in anneal to this Court.

To appreciate the contention which has been advanced by Mr. Shamair Chand, the learned counsel for the appellant it would be necessary to set out Sub-rule (2) of Rule 6 of Order 41 of the Civil Procedure Code, under which proceedings have been taken by the executing Court:--

"(2) Where an order has been made for the safe 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."

It has been argued by the learned counsel that the provisions of the sub-rule do not warrant the order asking the judgment-debtor to deposit half the decretal amount. He has relied on a decision of Martineau J. in Shankar Das v. Kasturi Lal AIR 1925 Lah 69, in his support. In that case the executing Court ordered that the sale shall be stayed on condition that the decretal amount be deposited and paid to the decree-holders, who, however, were not required to furnish security. Martineau J. held that "the order which the lower Court passed is clearly against the spirit of the rule, as it is tantamount to an order refusing to stay of sale." I take the authority of Martineau J. to mean that an executing Court would be justified in asking the judgment-debtor to deposit an amount less than the decretal amount before staying the sale of an Immovable property in execution of the decree.

All that Martineau J. said was that if the judgment-debtor is asked to pay up the whole of the decretal amount, there is hardly any point in asking for staying of sale of immovable properties as the decree would in that case stand fully satisfied. The conditions envisaged in Sub-rule (2) clearly contemplate an order asking for the deposit of a substantial sum out of the decretal amount. Indeed the ruling of Martineau J. has been doubted by Division Bench of the Madras High Court in P.C. Thirumalai Goundar Vs. Town Bank, Ltd., where it was held that the lower Court has jurisdiction to make a condition that the stay would be granted on deposit of the decretal amount.

The same view has been held by the Patna High Court in Beni Singh Vs. Ram Saran Singh, and by the Madras High Court in Rukmani Ammal Vs. Subramania Sastrigal and Another, In 1911, a Division Bench of Woodroffe and Camduff JJ. of the Calcutta High Court, in Ham Nath Singh v. Kamleshwar Prasad Singh 9 Ind.Cas. 323, held that "the Court can make it a condition of the order for stay of sale that the money decreed should be deposited in Court in cash."

There is a clear weight of authority in favour of the view which has been taken by the executing Court, whose order therefore must be upheld. This appeal fails and is dismissed. I would, however, make no order as to costs.