Rattan Kaur and others vs Maluk Singh and others

Rajendra Nath Mittal, J.—This revision petition has been filed by the decree-holders against the order of the Senior Subordinate Judge, Ferozepur, dated April 29, 1978, where by the petition of the judgment-debtors under Order 41, Rule 6 (2) of the CPC (hereinafter referred to as the Code) has been accepted and sale of the property stayed.

Briefly the facts are that Sohon Singh, husband of petitioner No. 1 and father of petitioner Nos. 2 to 6 was murdered by Maluk Singh and Surain Singh, respondents. The petitioners instituted a suit for damages against the respondents and decree for Rs. 45,700/- with costs was passed in their favour on February 28, 1077. An appeal against the decree was filed in this Court on July 8, 1977, which was admitted on September 9, 1977 The appeal is still pending.

An application for execution was filed by the decree holders and in pursuance of that, land measuring about 38 killas belonging to the Judgment debtors was attached. An application under Order 41, Rule 6 (2) of the Code was filed by the Judgment-debtors stating that the land attached was of the value of more than the decretal amount and in the circumstances the sale of the property be stayed. The learned executing Court stayed the execution on the ground that the attached land was more than sufficient for the satisfaction of the entire decretal amount. The decree-holders have come up in revision against the order of the executing Court to this Court

It is contended by Mr. Sarin, learned counsel for the petitioners that the Court could stay the execution only on such terms as to giving security or otherwise as the Court thought fit According to the learned counsel the Court could not stay the execution unless some security had been given for payment of the amount in addition to the attachment of the land. In support of his contention, he placed reliance on Mst. Prito v. Iqbal Singh (1978) 80 R.L.R. 284, and Ranjit Singh v. Krishan Kumar (1977) 79 P.L.R. 734.

I have heard the learned counsel for the parties at a considerable length. In order to determine this question, it will be proper to refer to Sub Rule (2) of Rule 6 Order 41 which reads as follows:--

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.

From a reading of the Rule, it is evident that during the pendency of the appeal if attachment of immovable property has been effected the sale can be stayed only on such terms as to giving security otherwise as the Court thinks fit. The words "be stayed on such terms as to giving security or otherwise as the Court thinks fit" in the Sub-Rule are significant. The only interpretation that can be put to these words is that unless some type of security in addition to the attachment of the immovable property is furnished by the decree-holder the stay of sale of the property during the pendency of the appeal cannot be granted. In this view, I am fortified by the observations in Mst. Prito''s case (Supra) wherein a learned single Judge of this Court made the following observations:--

It is now well settled that the provisions of Order 41. Rule 6(2) of the CPC are mandatory. A judgment debtor is entitled to stay of sale of his immovable property when he applies for it. The provisions come into play when the immovable 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 CPC comes to his rescue. Doubtless, the rule is primarily for the benefit of the judgment debtor, but it also safeguards the interest of the decree-holder by providing for imposition of terms on the judgment debtor.

Similar view was taken by me in Ranjit Singh''s case (supra) Mr. Aggarwal, learned counsel for the judgment-debtors has placed reliance on a judgment of Bombay High Court in Ganesh Laxman Vs. Raosaheb Premchand Ichharam, wherein similar view was taken as has been taken by the executing Court. With great respect to the learned Judge, I am unable to accept the view taken by him.

Now the question arises on what terms the sale of the immovable property (should be stayed. The decree, as I have already stated above, was passed in favour of the petitioners on February 28, 1977, for recovery of Rs. 45,700/- on account of damages for murder of Sohan Singh by the respondents. On the other hand, Mr. Aggarwal learned counsel for the judgment-debtors submits that the judgment-debtors are undergoing life imprisonment and their wives and minor children are unable to arrange for the decretal amount or furnish security. It is not disputed that land measuring about 28 killas have been attached. Out of the income of the aforesaid land, in my view, Rs. 5000/- per crop be paid by the judgment-debtors to the decree-holders.

After taking into consideration the circumstances of this case, I direct the respondents to deposit in the executing Court an amount of Rs. 25.000/- out of the decretal amount in 5 equal instalments of Rs. 5000/- each to be payable after every six months. The first instalment of Rs. 5000/- will be deposited by them on or before 15th December, 1978, the second on or before 15th June, 1979, the third on or before 15th December, 1979, the fourth on or before 15th June, 1980 and the fifth on or before 15th December, 1980. The stay of sale of immovable property is confirmed subject to the above condition and in case the judgment-debtors fail to deposit any of the instalments in the executing Court, the stay order shall stand vacated.

If the amount is deposited by the judgment-debtors, as ordered above, the same be paid to the decree-holders on furnishing security to the satisfaction of executing Court which may be accepted after notice to the judgment debtors.

For the aforesaid reasons, the revision petition is accepted to the extent as indicated above. No order as to costs.