Prahlad Kumar and another vs Avtar Krishan

J.V. Gupta, J.—This petition is directed against the order of the executing court dated 15th June, 1985, whereby the application filed by the judgment-debtor under O. 41, R. 6 (2) of the Code of Civil Procedure, was dismissed.

It is the money decree dated 30th December, 1975, which was being executed It may be mentioned that earlier the parties had gone up to the Supreme Court in this very case. The decree was passed ex-parte. The application for setting aside the ex-parte decree has been dismissed by the trial court. It is said that the appeal against the order dismissing the application for setting aside the ex parte decree is pending in the Court of District Judge. However, when execution was sought of the said decree, an application under O. 41, R. 6, Code of Civil Procedure, was filed but the executing court dismissed the same with the following observations :--

The execution of the decree is being got stayed on the ground that an appeal is pending in the Id. court at Jullundur. A perusal of the file shows that proviously also JD/ applicant had filed an application before my Id. predecessor on the same ground that the execution proceedings be stayed. Said application was dismissed by my Id predecessor on 30.4.1984 and as such this application is not maintainable. A perusal of the file also shows that the JD tried his luck even up to the Hon''ble Supreme Court of India and his SLP (Civil) No. 13624 of 1984 was dismissed on 18.2.1985 Therefore, there is no ground made out to stay the execution proceedings. The application is, accordingly, rejected.

At the time of motion hearing, vide this Court order dated 19th June, 1985, notice of motion was Issued for 27th June, 1985. However, a prayer for stay was declined. On 27th June, 1985, this Court passed the following order:--

Let fresh notice issue to the respondent for 15.7.1985.

Stay sale of the property subject to the judgment-debtor furnishing bank guarantee to the executing court, for the decretal amount, on or before July 4, 1985.

On 7th August, 1985, it was stated on behalf of the petitioner that no bank guarantee had been furnished as directed by this court vide order dated 27th June, 1985. Accordingly, it was clarified that there was no stay in this case. In other words, the stay was vacated. After the stay was vacated, it is admitted that the property attached was put to auction.

The main contention raised on behalf of the petitioner is that under the provisions of O. 41,R.6,the executing court was legally bound to stay the sale of the property attached because an appeal against the decree was pending in the Court of the District Judge. According to the learned counsel, having failed to stay the sale proceedings, the impugned order was illegal, and, thus, liable to be set aside. It was further conrended that the application could not be dismissed on the ground that such an application was dismissed earlier. In Support of his contention he referred to Jangir Singh Ganda Singh v. Mst. Nihal Kaur AIR 1965 P&H, Bishen Singh Vs. Chanan Kaur and Another, , Mst. Prito v. Iqbal Singh (1978) 80 P.L.R. 284, Pehlad v. Dalel Singh (1978) 80 P.L.R. 125 and Rattan Kaur v. Maluk Singh (1978) 80 P.L.R. 683.

After hearing the learned counsel for the parties I do not find any merit in this petition. The proposition of law as propounded by the learned counsel is not disputed. It is also not disputed by the learned counsel for the petitioner that the sale could be stayed on such terms as to giving security or otherwise as the Court thinks fit under sub rule (2) of R. 6 of O. 41. Even if the executing court has not put any such terms, this Court vide order dated 27th June, 1985 (supra) stayed the sale subject to the judgment-debtor furnishing bank guarantee to the executing court for the decretal amount on or before July 4, 1985. For the reasons best known to the petitioner-judgment-debtor, he did not avail himself of that opportunity and failed to furnish the bank guarantee, as admitted by him on 7th August, 1985. Thus, it is evident that it is the conduct of the petitioner which allowed the auction proceedings to continue. That being so this petition is liable to be dismissed because the petitioner never complied with the terms which were put by this Court as contemplated under O. 41, R. 6 (2), C.P,C, for staying the sale. Consequently, the petition fails and is dismissed with costs.