Judgment

RAGHUBAR DAYAL, J. :

This application purports to be one under O. XLV, Rr. 2 and 5 of the SC Rules and contains the following prayers:

(i) to direct the respondents to furnish security for delivering possession of the lands in dispute and for payment of mesne profits and costs which the petitioners might get in appeal;

(ii) to restrain the respondents from transferring the lands in dispute or creating any charge on the said lands pending the decision of the appeal in this Hon ble Court;

(iii) to send for the record of the case and get the record printed under the supervision of this Hon ble Court;

(iv) to order an early hearing of the case. Prayers Nos. (i) and (ii) appear to have been made in view of R. 5 which provides that nothing in the rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

2. The respondents-decree holders have obtained possession over the land in suit in execution of the decree in their favour. The petitioners did not take any action under O. XLV, R. 13 (2), Civil Procedure Code, at the time the respondents-decree holders applied for execution. If they had applied to the High Court for the stay of execution, the High Court could have either allowed execution on taking security from the respondents for the due performance of any order which this Court might have made on the appeal or might have stayed the execution of the decree on taking security from the petitioners-appellants for the due performance of the decree appealed from or of any decree or order which this Court might make on the appeal. The question arises whether, after the decree has been executed and the decree-holders have been put in possession by the Court, this Court can put the respondents-decree holders to terms and direct them to furnish security for their delivering possession of the land in dispute and for payment of mesne profits, if the appeal succeeds and whether the Court can restrain the respondents-decree holders from transferring the lands in dispute, pending the decision of the appeal in this Court.

3. A notice of this petition was served on the respondents-decree holders, but they did not put in appearance.

4. Mr. Naunit Lal, for the petitioners, has referred us to some cases and to the provisions of the Code of Civil Procedure, in this connection. Reliance is chiefly placed on the case of Mst. Jariut-ool-Butool v. Mst. Hoseinee Begum, 10 Moo Ind App 196 (PC) which was followed by the Madras High Court in Narayanan Chetti v. Arunachallam Chetti, ILR 19 Mad 140 and by the Bombay High Court in Khushaldas Gokuldas v. Chimanlal Kalidas, ILR 50 Bom 453: (AIR 1926 Bom 425) in a case which came before it after the enactment of the Code in 1908. In the Privy Council Case, the Privy Council expressed the opinion that the Sadar Dewani Adalat was competent to require the decree-holder to furnish the security or otherwise to provide for the protection and security of the property in question pending the appeal, notwithstanding that execution had issued before the appeal was allowed. Their Lordships of the Privy Council did not express themselves with respect to the reasons for the view and simply stated that they had felt some difficulty in dealing with the case, but on examining the Regulations and considering the nature of the case, they were of opinion that an order might be made upon the application. The Regulations referred to in the submissions before their Lordships were the Bengal Regulation XVI of 1797, Bengal Regulation XIII of 1808, Section II, clause (3) and Bengal Regulation V of 1798, Sections V and VI. Section II of the Bengal Regulation XVI of 1797 provided for persons desirous of appealing from a judgment of Sadar Dewani Adalat to the King-in-Council to present their petition of appeal to the court of Sadar Dewani Adalat which was empowered to admit the appeal and proceed upon