Mst. Prito vs Iqbal Singh

S.C. Mittal, J.—A decree for the recovery of Rs. 6799.85 was passed in favour of Iqbal Singh against Smt. Prito. Her appeal was dismissed by the District Judge. Regular Second Appeal No. 1864 of 1976 filed by her was admitted to hearing and the same is pending in this Court. However, her application for stay of the execution of the decree was disallowed. In the course of the execution proceedings, two acres of land belonging to her was attached. Later, it was ordered to be auctioned. She then applied under Order 41 rule 6(2) of the Code of Civil Procedure, for stay of the sale. Her application was dismissed. Feeling aggrieved, she has preferred this revision petition.

Order 41, rule 6(2) of the Code reads:--

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 Court thinks fit until the appeal is disposed of.

It is now well settled that the provisions of Order 41, rule 6(2) of the Code are manadatory. A judgment debtor is entitled to stay of suite of his immovable property when he applies for it vide Jangir Singh and others v. Mst. Nihal Kaur and others (1965) 67 P.L.R. 460, Bishen Singh Vs. Chanan Kaur and Another, , and Ranjit Singh v. Krishan Kumar (1977) 79 P.L.R. 734. That being so, the sale of the attached land of Smt. Prito has to be stayed, but the question is, on what terms ?

It need hardly be said that the provisions of Order 41, rule 6(2) of the Code come into play when the immoveable property of the judgment debtor is ordered to be sold in execution of the decree, from which an appeal is pending. The reason behind is not far to seek in case the property is sold and the judgment debtor''s appeal is allowed he cannot get his property back. To save the judgment debtor from such an irreparable loss, Order 41, rule 6(2) of the Code comes to his rescue. Doubtless, the rule is primarily for the benefit of the judgment debtor, but it also safe-guards the interest of the decree-holder by providing for imposition of terms on the judgment debtor.

It is pertinent to quote here Order 41, rule 1(3) of the Code, which is in the following terms:--

Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.

If a judgment debtor having sufficient means to satisfy the money decree, contumaciously does not pay up the decretal amount, despite refusal of the stay of execution of the decree by the appellate court, the term under Order 41, rule 6(2) of the Code may be that the sale of the immovable property of the judgment debtor be stayed upon his depositing the entire decretal amount or part thereof in Court. Reliance in this regard was placed by the learned counsel for Iqbal Singh on a Bench decision of the Madras High Court in P.C. Thirmumalai Gounder v. Town Bank Ltd AIR 1934 Mad 709, in which the learned Judges observed that while ordering stay of the sale of immoveable property under Order 41, rule 6(2) of the Code, the Court can order the deposit of the decretal amount in cash as a condition for the stay of sale in execution. Later, a Bench of the same High Court in Rukmani Ammal Vs. Subramania Sastrigal and Another, , expressed the view that there was no limit to the discretion of the Court in imposing terms and the Court is not without power to deal with a vexatious judgment debtor if the Court is obliged to stay the sale when such an application is made. Similar view was expressed by a learned Single Judge in Beni Singh Vs. Ram Saran Singh, . I find myself in respectful agreement with these rulings.

My attention was then drawn by the learned counsel for Iqbal Singh to the precedents of this Court in which stay was granted on the condition that the judgment debtor pays half the decretal amount to the decree-holder vide Ranjii Singh v. Krishan Kumar (1977) 79 P.L.R. 734 and Angad Ram Ram Singh Vs. Gainda Mal Charanji Lal and Others,

In the present case learned counsel for Iqbal Singh urged that payment of the decretal amount in full as a condition for the stay of the sale of the attached land of Smt. Prito, Support was sought from the following circumstances. The loan was taken by Smt. Prito as long back as in July (sic) on a pronote. The decree against her was passed on 2nd January 1974. Thereafter, she preferred an appeal which was dismissed by the District Judge and now her regular second appeal is pending. Early hearing thereof is not likely. Smt. Prito has not paid a single penny so far The decretal amount is not fetching any interest Iqbal Singh is a double loser, in that he has not only been deprived of the fruit in his decree but also of the future interest on the decretal amount. On the other hand, learned counsel for Smt Prito contended that the attached immoveable property sought to be auctioned was enough to safeguard the interest of Iqbal Singh. If this were the last word on the subject. Order 41, rule 6(2) Civil Procedure Code, would not have provided for the imposition of terms on a judgment debtor. Learned counsel then urged that Smt. Prito was financially not well off to pay the decretal amount. In the first place, the contention has not been supported by placing any material on record. In the second place, learned counsel for Iqbal Singh hotly contested it by contending that she owns considerable landed property, out of which only two acres have been ordered to be auctioned in the execution of the decree in question. She even disposes of some other property but did not care to discharge her liability. Besides, urged the learned counsel for Iqbal Singh that she has sufficient income from properties. Upon a consideration of the entire matter. I find that no case has been made out to execuse. Smt. Prito from depositing the entire decretal amount in Court.

In the result, I allow the revision petition with costs, set aside the impugned order and direct that the sale of the attached property of Smt. Prito be stayed on the condition that she deposits the entire decretal amount in Court on or before 28th February, 1978. Iqbal Singh would be at liberty to withdraw the said amount upon furnishing security to the satisfaction of the executing Court.