The inherent powers of the court under Section 151 can be invoked for staying further proceedings, even if not expressly provided in the Code, as long as it is not opposed to or prohibited by the provisions of the Code and it relates to matters on which the Code cannot be said to be exhaustive.

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 decree stay the making of a final decree in pursuance of the preliminary decree or the execution of any such final decree if already made.

5. On the language of the rule as it stands the petitioner cannot be given the relief prayed for as the appeal is only against an order refusing to set aside the preliminary decree.

6. In a case reported in 32 L.W. Short Notes 41 (C.M.P. No. 3754 of 1930) it was held by Lakshmana Rao, J., that in similar cases, since there is no appeal against the ex parte decree the application for stay of further proceedings in pursuance of the decree cannot be entertained in a civil miscellaneous appeal against an order refusing to set aside an ex parte preliminary mortgage decree. He followed the decision of Jackson, J., in C.M.P. No. 3871 of 1929 (57 M.L.J. Short Notes 44).which was a similar case. In the latter case the decision in Bhagwat Rajkoer v. Sheo Golam Sahu I.L.R.(1904) Cal. 1081 was referred to and followed. That decision of the Calcutta High Court was based on the express language of Section 545 of the Civil Procedure Code corresponding to Order 41, Rule 5 of the present Code, and it was held that it was not competent to an appellate Court to stay proceedings in execution of a decree of a Subordinate Court pending an appeal preferred against an order of refusal of the Court below to set aside the decree under Section 108 of the old Code of Civil Procedure (Order 9, Rule 13 of the present Code). The decision in Jamuna Prasad v. Magai Ram A.I.R. 1916 Pat. 397 follows the decision in Bhagwat Rajkoer v. Sheo Golam Sahu I.L.R.(1904) Cal. 1081 and refers to it as sufficient authority for the position that there is no power vested in the appellate Court to stay proceedings in a case such as this. In Mohan Lai v. Shibdhari AIR1942Pat146 also it was held that an order staying execution of a decree under such circumstances was one passed without jurisdiction. Reference was made in it to the decision in Bhagwat Rajkoer v. Sheo Golam Sahu I.L.R.(1904) Cal. 1081 and to that in Jamuna Prasad v. Magai Ram A.I.R. 1916 Pat. 397 as authority for the position. That decision also, was giyen with reference to the express language of Order 41, Rule 5.

7. In none of these cases was the question considered as to whether such an order could be passed irrespective of Order 41, Rule 5 in exercise of the inherent powers of the Court under Section 151 of the Civil Procedure Code. As urged for the petitioner even before the present Code of 1908 came into force it had been recognised that Courts in India had inherent powers ex debito justitiae which could be invoked in such cases, and under the Code of1908 it has received legislative recognition in Section 151. In Hukum Chand Boid v. Kamalanand Singh I.L.R.(1905) Cal. 927 Mookerjee, J., after referr