Bishen Singh vs Chanan Kaur and Another

1 .This is judgment -debtors'' revision application from the orders dated October 17, 1966 of the subordinate Judge 1st Class, of Jullundur refusing to stay sale of the attached land of the judgment -debtor under sub-rule (2) of R. 6 of Order 41 of the Code of Civil Procedure.

The respondent , the decree holder, obtained a money decree against the applicant, who has filed an appeal against the decree in this court. In that appeal, the prayer for stay of execution was disallowed because the decree is a money decree. So the execution proceeded and the land of the applicant has been attached in execution of the decree. On such attachment of the applicant applied under sub-rule (2) of rule 6 of Order 41 for stay of sale. Sub-rule (2) of that rule says that.

"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."

In terms this sub-rule is imperative and the Court below had no option but to accept the application of the applicant and to order stay of sale of his attached land. What it could do was to ask security as a condition for stay of the sale. The learned counsel for the applicant says that the Court below could only ask security as to costs, but there is nothing in this sub-rule which limits ambit of this security only to the amount of costs. The Court below could have asked the applicant to furnish security for payment of the whole of the amount if it wished to do so. Somewhat similar question arose before Mahajan J. in Jangir Singh Ganda Singh and Others Vs. Nihal Kaur and Others, and the learned Judge after review for a number of cases reached the same conclusion.

So this revision application of the applicant is accepted and the sale of the applicants'' attached land shall remain stayed till the disposal of the applicant''s appeal in this Court provided the applicant furnishes to the satisfaction of the executing Court security to the tune of the amount due from him to the respondent under he decree for the immediate payment of the same in case his appeal should fail in this Court. The security is to be furnished within a month from today and after notice to the decree-holder, respondent. There is n order as to costs in this revision application.

Revision accepted.