S. Viswanatha Pillai vs The Indian Overseas Bank Ltd.

This is an application for stay of execution of the decree in O.S. No. 58 of 1956 on the file of the Sub-Court, Tirunelveli, pending disposal of

C.M.A. No. 221 of 1959. O.S. No. 58 of 1956 is a suit on mortgage laid by the respondent bank against the petitioner. There was an exparte

decree on 27th September, 1957. On 26th October, 1957, an application was filed by the petitioner for setting aside the ex parte decree on the

ground that he was prevented by sufficient cause from appearing in Court on the date'' of trial. The learned Subordinate Judge dismissed the

application to set aside the ex parte decree. C.M.A. No. 221 of 1959 is filed against the order refusing to set aside the ex parte decree. In the

meanwhile the respondent has taken steps to bring the properties to sale. The petitioner therefore prays that there should be stay of execution of

the decree pending disposal of C.M.A.

Mr. Thambi, learned Counsel for the respondent, takes a preliminary objection that this Court has no jurisdiction to stay the execution of a

decree when there has been no appeal against the decree itself, and when the only appeal before this Court is against the order refusing to set aside

the ex parte decree. In support of his contention he has relied upon three decisions, namely, Bhagwat Rajkoer v. Sheo Golam Sahu ILR (1904)

Cal. 1081 : 9 C.W.N. 123, Jamuna Prasad v. Magai Ram (1918) 35 I.C. 443 and Mohan Lal Mahto Vs. Shibdhari Chaube and Another, . It is

needless to say that the practice of this Court is not in accord with the principle of these decisions. According to that practice there is jurisdiction in

the Court to grant, in proper cases, stay of execution of decree pending an appeal against the order refusing to set aside an ex parte decree. The

decree which is made against the party will depend upon its validity upon the decision in the appeal against the order refusing to set aside the ex

parte decree. For instance, if this Court were to hold that the ex parte decree should have been set aside, it would follow that the decree will

automatically stand vacated. In the circumstances it can be said that the decree itself is something in the nature of a dependent one, pending upon

the judgment in the appeal by this Court. I am of opinion that it would be open to this Court to grant a stay of all dependent proceedings while it is

in seisin of the appeal against the order refusing to set aside the ex parte decree. A similar question arose in Sundaram Chettiar v. Valli Ammal

(1934) 68 M.L.J. 16 : ILR (1934) Mad. 116. That was a case in which there was an appeal against the order passed in the Original Side granting

conditional leave to defend a summary suit. The Court held that it had power to stay execution although no appeal had been filed against the

decree, so long as an appeal was pending against the order refusing leave to defend unconditionally. I am therefore of opinion that there is no merit

in the preliminary objection.

On the merits, it has not been shown to me how the respondent will be prejudiced by an order for stay. There is no doubt that''the petitioner will

be prejudiced because if his contentions were right, his property would be sold even before there is any adjudication in the suit. It was stated on

behalf of the respondent that the petitioner is in involved circumstances! I cannot understand how that will be a relevant consideration where the

respondent has got the security of the mortgaged property, which has not been shown to me to be insufficient to cover the decree.

Under the circumstances, I grant stay of execution of the decree as prayed for.