There is no general rule that proceedings for the final decree should be stayed pending the decision of the appeal against the preliminary decree. Each case has to be judged on its own merits.

Gurdev Singh, J.

1. In a suit brought by Ram Chand and others, a preliminary decree for redemption of land on payment of Rs. 1347.70 np, was passed in their favour by the Senior Subordinate Judge, Hissar, on 31st July, 1961. The defendants, Chela Ram and others feeling aggrieved have come up in appeal to this Court. They applied under Order XLI, rule 5 of the Civil Procedure Code, and obtained an ex parte order staying the passing of the final decree. Now the respondent decree-holders have applied for vacating the stay order. It is contended on their behalf that as they had deposited the entire redemption money in Court, they were entitled to possession of the property. Reliance in this connection has been placed upon Bawa Tirath Singh v. Prem Nath and others, 1961 P.L.R. 461 where Pandit, J. refused to stay the proceeding for the passing of the final decree despite the fact that an appeal against the decree for redemption had been preferred by the plaintiff mortgagors.

2. In opposing the prayer for vacating the stay order, the counsel for the defendant mortgagees has contended that it was a general rule that the proceedings for the final decree should be stayed pending the decision of the appeal against the preliminary decree. Reliance in this connection has been placed upon Diwan Chand and others v. Nanak Chand, A.I.R. 1932 Lahore 271, Karam Elahi and another v. Mst. Amir-un-nisa and others, A.I.R. 1930 Lahore 108(1), Rai Sahib Lala Rup Narain v. Shibbu Mal and another, 107 Indian Cases 486 and Chhote Lal and others v. Rai Bahadur Sultan Singh, III Indian Cases 383. Though in the first two cases it was observed that further proceedings should generally be stayed yet in the other two cases, there is no reference to any general rule or practice of the Court. In III Indian Cases 383, the Court was dealing with a preliminary decree passed in a suit for rendition of partnership accounts. In granting the stay, Addison, J. merely observed :-

"The plaintiff objects to the ad interim order of stay being made absolute. It seems to me, however, that further proceedings in connection with the final decree should be stayed pending the hearing of the appeal.........A stay order was allowed in a case similar to the present by this Court in Firm Badridas Jankidas of Delhi v. Mathanmal, A.I.R. 1922 Lahore 185.

In 107 Indian Cases 486, Dalip Singh J., after considering what could be possible result of the passing of a final decree during the pendency of an appeal against a preliminary decree, granted the stay of further proceedings with the following observations :-

"In the circumstances, though I am not prepared to endorse the reasoning of the Full Bench of the Allahabad High Court, I consider that it is best to stay all further proceedings in the suit until the disposal of the appeal."

3. These authorities do not lay down any general rule nor do they disclose that it was the settled practice of the Lahore High Court to stay proceedings for final decree where an appeal has been preferred against a preliminary decree. So far as this Court is concerned, no such rule or practice is recognized. On the contrary, in a recent case, 63, P.L.R. 461, Pandit, J. has observed that no such general rule has been laid down for stay of proceeding in such cases.

4. In considering the question of the stay of proceedings after the passing of a preliminary decree, in my opinion, each case has to be judged on its own merits. Wherein an appeal against a preliminary decree for redemption the main dispute is about he amount which is payable to the mortgagor there may not be any adequate reason for keeping the mortgagor out of possession by staying further proceedings, as the interests of the mortgagee can be safeguarded by demanding adequate security for the payment of the amount that may ultimately be adjudged due to the mortgagee. There may, however, be cases in which the very right of the mortgagor to redeem the property may be challenged. In those cases