Kuppuswami Ayyar, J.

1. The petitioner, the first defendant in O.S. No. 6 of 1942 on the file of the District Court of Cuddapah seeks to have the passing of the final decree in that suit stayed pending disposal of C.M.A. No. 369 of 1943 filed against the order in I.A. No. 17 of 1943 dismissing his application for setting aside the ex parte preliminary decree passed in that suit. It was a suit for recovery of money due on a hypothecation deed.

2. The main contention of the respondent is that the application is not maintainable and that this Court has no jurisdiction to stay the passing of the final decree.

3. The petition has been filed under Order 41, Rule 5 and Section 151 of the Civil Procedure Code. Order 41, Rule 5 runs thus:

An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate Court may for sufficient cause order stay of execution of such decree.

4. The rule as amended in Madras has the following additional provision:

and may when the appeal is against a preliminary de