Narku Mahton and Others vs (Kumar) Kamakhya Narayan Singh

This is an application on behalf of the appellant in Miscellaneous. Appeal No. 107 of 1931 for stay of execution of the decree pending hearing of an appeal against an order made in the proceeding relating to the execution of that decree.

The first question for consideration is that raised by the learned Registrar in his order of 17th July 1931. The question is as regards the procedure for hearing applications under Order 41, Rule 8, Civil P.C. The learned Registrar has stated that it is doubtful whether the Registrar has jurisdiction to hear such applications. Rule 13(9), Ch. 2, Patna High Court Rules gives the power to the Registrar to receive and dispose of an application under Order 41, Rules. 5, 6 and 10. Rule 8 is omitted. It is therefore clear that the Registrar has no power to hear applications under Order 41, Rule 8. It is however contended by the learned advocate for the appellant that such applications are comprised in Order 41, Rule 5. Sub-Rule (1), Rule 5 first provides that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate Court may order. This is a general provision applying to appeals both against decrees as well as against orders. The Sub-rule then proceeds and says:

Nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate Court may for sufficient cause order stay of execution of such decree.

This provision refers only to the stay of execution of a decree and not to the stay of execution of an order. Provision for stay of the execution of an order is made in Rule 8 which says that the powers conferred by Rules. 5 and 6 shall be exercisable where an appeal may be and has been preferred not from the decree but from an order made in execution of such decree. It is thus clear that under the Patna High Court Rules the Registrar has no power to hear an application under Order 41, Rule 8. We do not however see why power should be given to the Registrar to hear applications under Order 41, Rules 5 and 6 and not under Rule 8. The rules as they stand do not empower the Registrar to hear such applications.

On the merits, having regard to the circumstances, this is a proper case for stay of execution pending the hearing of the appeal. But such stay will be allowed on the petitioner depositing a sum of Rs. 300 in cash for payment to the decree-holder before the properties are put up for sale and for the balance of the decretal amount the appellant must furnish security to the satisfaction of the Court below.

Mr. Shiveswar Dayal has raised a question as regards the sufficiency of the affidavit filed by the petitioner. The affidavit has been made by Raghunandan Missir, who is the clerk of Mr. B.C. De, the advocate for the petitioner, and he states that the facts stated in the petition are true to his information received from Mr. Prafulla Chandra Mitter, Advocate, Hazaribagh, and from the appellant Narku Mahto which he says he believes to be true. It is contended that such an affidavit made by the clerk of the advocate upon information received from the Hazaribagh advocate of the appellant and from the appellant himself is not a sufficient affidavit.

The facts however which are sworn to are simply to the effect that the petitioner is an agriculturist and is unable to raise the amount in cash on account of the present economic depression and that if the village is sold now it will not fetch an adequate price and that it will be impossible for the appellant to recover it even if the appeal succeeds. As regards the economic depression that is a fact which can be sworn to by any person who has got knowledge of that fact. As regards the property fetching an inadequate price, nobody can swear an affidavit to this effect as it is impossible to say before sale what price the property will fetch. All that the appellant can swear to is as regards an apprehension that the property may not fetch an adequate price. If information of these facts is given to an advocate''s clerk and the clerk believes such information to be true, we do not see why an affidavit swearing to such facts on information should not be a good affidavit within the meaning of Rule 12, Ch. 3, Patna High Court Rules and the present affidavit conforms with the said rule.