Raunki Ram Bir Chand and Another vs Aggarwal Textiles

G.C. Garg, J.—This revision is directed against the order dated March 9, 1991 passed by the executing Court whereby judgment debtors were allowed to deposit the decretal amount on or before March 23, 1991 failing which the attached property was to be put to auction for realisation of the decretal amount.

A decree for the recovery of Rs. 52925/- with costs and interest at the rate of 12 per cent per annum on the principal amount of Rs. 38052.10 from the date of the suit till the date of payment or realisation, was passed in favour of M/s. Aggarwal Textiles, respondent-decree holder by the civil Court at Ahmedabad. The decree was transferred to the Court at Ambala for execution, since the judgment debtors, now petitioners were residents of Ambala. The property of the judgment debtors was attached and ordered to be put to auction for realisation of the decretal amount. At this stage, the judgment debtors put in appearance and moved an application under Order 41 Rule 6(2) of the Code of Civil Procedure. The executing Court by its order dated October 20,1989 stayed the auction of the attached property subject to the conditions that the judgment debtors shall deposit the entire decretal amount in cash in the Court within one month of the said order. It was further ordered that if the judgment debtors failed to deposit the amount, stay of auction shall stand vacated and attachment shall, however, continue. The judgment debtors failed to deposit the decretal amount with the executing Court within the time allowed or even thereafter. A similar application was again filed by the judgment debtors since in the meantime, the executing Court had taken steps to put the attached property to sale. On this occasion, the judgment debtors prayed that they be allowed to furnish guarantee instead of being asked to deposit the decretal amount in cash. The executing Court considered this prayer of the judgment debtors and disposed of the application by order dated March 9, 1991. It was observed that there was absolutely no ground to change or alter the decision already made on October 20,1989. However, in the interest of justice, the judgment debtors were allowed to deposit the decretal amount on or before March 23, 1991. It was also ordered that in case the judgment-debtors failed to deposit the amount by the aforesaid date, the attached property shall be put to auction. The judgment debtors aggrieved by the latter order dated March 9,1991 have filed the present revision.

Learned counsel for the petitioners relying on Shankar Dass v. Kasturi Lal AIR 1925 Lah 69 ; Jangir Singh Ganda Singh and Others Vs. Nihal Kaur and Others, ; Bishen Singh Vs. Chanan Kaur and Another, and Prahlad Kumar and another v. Avtar Krishan (1985) 88 PLR 491, contended that sale of the attached property ought to be stayed subject to judgment debtor''s furnishing bank guarantee for the decretal amount and the executing court erred in directing the judgment debtors to deposit the decretal amount in Court for staying the sale of the attached property. In Jangir Singh Ganda Singh''s case (supra) a learned Judge of this Court took the same view as was taken by the Calcutta High Court in Noor Jehan Begum Vs. Eugene Tiscenko, with one exception as noticed in the said judgment and is not necessary to be noticed here as it is not relevant to the facts of the case in hand. In Dhirendra Nath Roy''s case (supra), the learned Judge took the view that "where an order has been made for sale and an application under Order 41, Rule 6 has been made to the Court, the Court should stay the sale on suitable terms and the Court must consider what terms are suitable. The fact that the stay has been refused under Order 41, Rule 5 does not justify the Court in refusing to exercise the jurisdiction vested in it under Order 41, Rule- 6." In Bishan Singh''s case (supra), Mehar Singh the then Chief Justice took the view that the executing Court has no option but to accept the application and order stay of sale. It was, however, further observed that the executing Court could ask security as a condition for stay of sale and while doing so, could ask the applicant to furnish security for the payment of the whole of the amount if it wished to do so. In Prahlad Kumar''s case the only question was, whether the executing Court could dismiss such an application only on the ground that a similar application had been dismissed earlier. In that situation, the High Court stayed sale of the property subject to judgment debtor''s furnishing bank guarantee. It may also be noticed that in Prahlad Kumar''s case (supra), the judgments in Jangir Singh Ganda Singh''s case (supra) and Bishan Singh''s case (supra) as also two other cases relied upon by the learned counsel for the respondents, namely, Mst. Prito v. Iqbal Singh (1978) 80 PLR 284 and Rattan Kaur v. Maluk Singh (1978) 80 PLR 683 were also considered while taking the aforesaid view. On the other hand, learned counsel for the respondents drew pointed attention to the observations made in Mst. Prito''s case (supra) wherein S.C. Mitta), J. while considering the provisions of Order 41, Rule 6(2) of the Code observed that the Court can order deposit of the decretal amount in cash as a condition for the stay of sale in execution and 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. In the end it was concluded that no case was made out to excuse the judgment debtor to deposit the entire decretal amount in Court and the decree holder was permitted to withdraw the amount so deposited on his furnishing security for its refund lo the satisfaction of the executing Court. In Ranjit Singh v. Krishan Kumar (1977) 79 PLR 734, the view taken in Jangir Singh Ganda Singh''s case (supra) was followed by R.N. Mittal, J. by observing that the provisions of Order 41, Rule 6(2) of the Code are mandatory and thus, it is incumbent on the executing Court to stay the sale of the attached immovable property of the judgment debtor in execution of money decree against which appeal is pending, on receipt of application of judgment debtor on such terms as to giving security or otherwise until the disposal of the appeal.

As already noticed, application of the judgment debtors has not been declined on either of the two occasions. By order dated October 20, 1989, the executing Court stayed auction subject to the condition that then judgment debtors would deposit the entire decretal amount in cash in Court within one month. When, for failure of the judgment debtor to deposit the money, the properties were sought to be auctioned and sold, another application was filed by them with a similar prayer as was made in the earlier application. The executing Court again stayed sale of the attached properties and directed the judgment debtors to deposit the decretal amount on or before March 23,1991. The executing Court thus, in the discretion vested in it under sub Rule (2) of Rule 6 of Order 4! of the Code directed the judgment debtors to deposit the decretal amount in Court. No case in my view is made out for any interference with the discretion exercised by the executing Court, especially having regard to the view already taken by this Court in Mst. Prito''s case (supra).

The submission of the learned counsel for the petitioners that this Court while admitting revision petition had stayed sale of the attached properties subject to petitioner''s furnishing bank guarantee for payment of the entire decretal amount, the said order deserves to be made absolute, the judgment .debtors having already furnished bank guarantee for the entire decretal amount, cannot be accepted. As already noticed, the executing Court in its discretion directed the judgment debtors on two occasions to deposit the decretal amount in Court which they failed to do so. There is hardly any justification for the judgment debtors to seek indulgence of this Court only to the extent that the judgment debtors be permitted to furnish bank guarantee instead of depositing the entire decretal amount in Court as ordered by the executing Court. Furnishing of bank guarantee neither helps the judgment debtors nor the decree holder. The executing Court has already exercised its discretion and this Court has always been loath to interfere with the discretion exercised by the Courts below. In none of the judgments relied upon by the counsel for the parties, discretion exercised by the executing Court in staying sale of attached property on such terms as the giving of security or otherwise as though fit by it, was interfered with by the High Court. No illegality or material irregularity has been pointed out in the order under revision entitling this Court to interfere u/s 115 of the Code. The petitioners shall now comply with the order of the executing Court passed on October 20. 1989 and re-iterated in another order dated March 9, 1991 within six weeks from today. In the event of judgment debtors depositing the decretal amount in cash in the executing Court, the sale of the attached properties shall remain stayed. If, however, the judgment debtors fail to comply with the terms of the orders of the executing Court within six weeks from today, the executing Court shall proceed to recover the decretal amount by sale of the attached properties.

In the result, the revision is dismissed with no order as to costs. If the judgment debtors happen to deposit the entire decretal amount in Court, the decree holder would be at liberty to withdraw the said amount on furnishing security as may be ordered by the executing Court to its satisfaction for the refund thereof in the event of judgment debtors succeeding in appeal stated to be pending before the appellate Court against the decree which is under execution.