Study of sale in execution of decree in a suit against third party.

This revision petition raises an interesting question of law namely whether a mofussil Court can, under section 94(e), Civil Procedure Code or Order 21, rule 58(2), Civil Procedure Code or section 151, Civil Procedure Code stay a sale in execution of a decree in a suit against a third party pending the disposal of a suit filed under Order 21, rule 63, Civil Procedure Code by a claimant to the properties brought to sale against the claim order.

The petitioner, Vodayar, claimed one machine of a printing press attached by the Vijaya Bank, respondent 1, as belonging to the 2nd respondent the Bada vara Bandlu Press, the judgment-debtor in O.S. No. 371 of 1948 on the file of the District Munsif, Mangalore, to be his and filed a claim petition R.I.A No 1256 of 1948, under Order 21, rule 58, Civil Procedure Code. That petition was dismissed. Thereupon he filed a claim suit (O.S. No. 84 of 1949) under Order 21 rule 63, Civil Procedure Code for staying the sale of the printing machinery attached under the decree in O.S. No. 371 of 1948 pending the disposal of O.S. No 84 of 1949. on such terms as the lower Court deemed fit. The lower Court considered that it had no jurisdiction to stay the execution of the decree or sale under section 94(e) or section 151, Civil Procedure Code or Order 21, rule 58(2), Civil Procedure Code and dismissed the application. Hence this revision petition. Rajagopalan, J. granted interim stay of all further proceedings in execution of the decree in O.S. No. 371 of 1948 on 31st May, 1949 in C.M.P. No. 3805 of 1949, filed by the petitioner, Vodayar. C.M.P. No. 4693 of 1949 is filed by the Vijaya Bank to vacate the interim stay.

I have perused the entire records and heard the learned counsel on both sides The learned Counsel for the petitioner urged before me that a claim has been held in Krishnappa Chetti v. Abdul Khader Sahib1, to be only a continuation of a claim petition, and that a stay of sale can be granted, under Order 21 rule 58(2) Civil Procedure Code and sections 94(e) and 151, Civil Procedure Code on suitable terms not only in a claim petition but also in its continuation in a claim suit as the sale is only postponed “pending the investigation of the claim or objection” in detail in the claim suit. I agree. Even if Order 21, rule 58(2), Civil Procedure Code and section 94(e), Civil Procedure Code do not apply, I think that the Court will have ample power under section 151, Civil Procedure Code in cases like these to grant a stay of execution or sale on terms calculated not to injure the interests of the decree-holders. The lower Court was, in my opinion, wrong in saying,

“The execution of a decree cannot be stayed under section 151, Civil Procedure Code”

The rulings in Ankalu Reddi v. Chinna Ankalu Reddi2, Ahmed Abdul Sukkoor v. Vallabhadas Kanji Firm3, Galstaun v. Dinsha4, Fitzholmes v. Waryam5, Sardarni v. Harnam6 and Hirambho Nath Banerji v. Sarojini7, show that the Court has got a power to order stay of execution, though within narrow limits under section 151, Civil Procedure Code also. The ruling in Ahmed Abdul Sukkoor v. Vallabhadas Kanji Firm3, shows that this power extends also to the mofussil Courts, and I too agree. Varadacharyulu v. Narasimhacharyulu8, relied on by the learned counsel for the respondent, cannot be preferred, in my opinion to these rulings, especially when we are concerned with a prayer for stay of sale in a claim petition which is a continuation of the suit and Order 21 rule 58(2), Civil Procedure Code and section 94(e), Civil Procedure Code also will apply. A court of justice, equity and good conscience must have powers to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court, under section 151, Civil Procedure Code. If for instance, an attached family heirloom, or elephant or gem or painting, having a great sentimental value for the claimant, is to be sold while his claim suit against a claim order is pending, it m