Bhajan Singh vs Teja Singh etc.

Gurnam Singh, J.—In a suit filed by Teja Singh and others against Bhajan Singh and others a decree for Rs. 27,300/- with costs, including the interest @ 6 % per annum uptil the date of the decision and with future interest at the same rate, was passed. Bhajan Singh filed R.F.A. No. 175 of 1972 which was admitted on 9th August, 1972. In the meantime the decree-holder sought the execution of the decree and a warrant for the sale of the land of Bhajan Singh was issued. Bhajan Singh filed civil Misc. Application No. 1109-C of 1974 under Order XLI rule 6 read with section 151 of the Code of Civil Procedure, praying for the stay of the sale of his land till the decision of the appeal. Notice of this application was issued to the respondents and in the meantime sale proceedings were ordered to be stayed.

Teja Singh etc. filed civil Misc. Application No. 1419-C of 1974 requesting for the vacation of the stay order passed on 15th April, 1974. This application of Teja Singh etc. has been opposed by the appellant. Both C.M. No. 1109-C/1974 and C.M. 1419-C/1974 will be disposed of by this order.

Shri H.L. Sarin counsel for Teja Singh etc., vehemently contended that no application for stay of sale under Order XLI rule 6 of the CPC could lie to this Court and he relied upon N.P.L.N.K.R. Kanniappan Chetti v. P.R. Manikavasabam Chetti XVII (1912) IC 763, Syaid Amir Alt v. Batuk Parshad 11 IC 22, and Mt. Zohra Jan and others v. Haveli Shah AIR 1932 Lah SIC .

The learned counsel for Bhajan Singh appellant in reply urged that the inherent powers of the appellate court under Order XLI rule 5 of the Code of Civil Procedure, are not cut down or limited by the special and exceptional power conferred on the executing court by Order XLI, rule 6, Civil Procedure Code. He relied upon Tribeni Sahu v. Bhagwat Bux, ILR XXXIV Cal 1037.

In case Syaid Amir Ali v. Batuk Parshad, supra, it has been held that :--

An application for stay of sale in execution proceedings must be made to the court executing the decree although an appeal might be pending against the decree in a higher court. The execution court only is competent to stay the sale and not the court of appeal.

In case Mt. Zohra Jan and others v. Haveli Shah and others, supra, Bhide J., observed that :--

It seems clear from the wording of O. 41, R. 6 that an application under this rule must be made to the executing court.

In case Tribeni Sahu v. Bhagwat, Bux supra, the questions referred to the Full Bench were :--

(i) When an appeal has been filed against a decree for money, has the appellate court jurisdiction to entertain an application made under the 3rd paragraph of section 546 of the CPC and to pass an order staying, pending the disposal of the appeal, the sale of immovable property of the judgment-debtor in execution of that decree ?

(ii) Has the case of Kunj Lal Marwari v. Bahitram Marwari been correctly decided ?"

And it was held by the Full Bench (Rampini A.C.J, expressing no opinion), that "when an appeal has been filed against a decree for money, the Appellate Court has jurisdiction to stay the sale of immovable property of the judgment-debtor in execution of that decree, pending the disposal of the appeal."

Per Rampini, A.C.J., Woodrofee and Mookerjee : "An Appellate Court cannot pass orders u/s 546, para 3, of the CPC staying a sale of immovable property."

Section 546 of the CPC of 1882 corresponds to Order XLI, Rule 6 of the CPC of 1908 Order XLI, Rule 6 reads as under :--

(1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such properly and for the due performance of the decree or order of the Appellate Court or the Appellate Court may for like cause direct the Court which passed the decree to take such security.

(2) 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.

The difference between section 546 of the CPC of 1882 and Order XII Rule 6 (2) of the CPC 1908, only is that the words "to the court which made" the order" have been added in Order XLI rule 6 and the words" for money" and "the Court which passed the decree" have been deleted from section 546 of the Code of Civil Procedure.

Order XLI Rule 5 of the CPC gives general powers of stay to the Appellate Court and it applies to all decrees including decrees relating to movable as well as immovable property. Order XLI Rule 6(2) of the CPC deals with the execution of the decree, where the sale of immovable property is ordered and an appeal is pending from such decree and the stay of sale is involved. With the alteration made in the language of Order XLI Rule 6(2) of the Code of Civil Procedure, the legislature has clearly intended that the application shall be made only to the court which made the order. The language of the Rule makes it clear that such application must be made to the Court which made the order for sale.

In Tribeni Sahu v. Bhagwat Bux, supra, Mookerjee, J., in the course of his judgment while discussing the 3rd paragraph of section 546 of the CPC observed that :--

On these grounds, I must hold that the third paragraph of section 546 of the CPC does not by itself apply to an Appellate Court.

The words "to the court which made the order" in sub-rule 2 of Order XLI Rule 6 show that an application for stay of sale under that sub-rule should be made to the executing and not to the Appellate Court The powers and duties of the Appellate Court are the same as are conferred and imposed by the CPC on the courts of original jurisdiction in respect of the suits instituted therein but subject to such conditions and limitations prescribed in the Code The wordings of Order XLI, Rule 6 of the CPC are clear that an application under rule 6 must be made to the executing Court. If the general powers conferred by Order XLI, Rule 5 of the CPC were to be exercised in every case then there was no necessity to introduce rule 6 in the Code of Civil Procedure. By introducing Rule 6, the legislature was clear in its mind that in case where an order for sale of immovable property has been made in the execution of a decree and an appeal is pending against such decree, the court which made the order shall stay the sale on the application of the judgment debtor on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of. Thus it is apparent that in such cases, it is the Court which made the order has to be approached first. Any order passed, by such court under Order XLI Rule 6 (2) of the CPC is appealable. Taking all these facts into consideration this application filed by Bhajan Singh under order XLI rule 6 of the CPC is dismissed and the stay is vacated. However, the appellant may, if so advised, seek his remedy in the court which passed the sale order.