The sub-rule (3) of Rule 26 of the Code of Civil Procedure is mandatory, and the Court is bound to ask the judgment-debtor to furnish security or impose other conditions before ordering restitution of the property.

Rajendra Nath Mital, J.

1. This revision petition has been filed against the order of the Subordinate Judge 1st Class, Ludhiana, dated 16th December, 1981, ordering restitution of the property under Order 21, Rule 26, Code of Civil Procedure.

2. Briefly, the facts are that a decree for possession was passed regarding the land in dispute in favour of the plaintiff decree-holders. After the decree, the judgment-debtors made an application under Order 21, Rule 26 of the Code of the Court for stay of execution proceedings on the ground that they wanted to file an appeal against the judgment and decree of the Court. Before the order of stay was passed the Court, the decree-holders took possession of the land in execution of the decree. Consequently, the judgment-debtors made an application for restitution of the land on the ground that they had filed an application for stay within the reasonable time but the order of stay could not be passed thereon and in the meantime the decree-holders took possession. The application was allowed and it was ordered by the Court that the possession of the land be restored to the judgment-debtors. The decree-holders have come up in revision against the said order of this Court.

3. It is contended by the learned counsel for the petitioners that once the possession of the land had been delivered to the decree-holders in the execution proceedings the Court could not order restitution thereof to the respondents except by complying with sub-rule (3) of the said rule.

4. I have given due consideration to the argument and find force therein. In Rule 26(1), it is provided that the Court to which the decree has been sent for execution can, upon sufficient cause being shown, stay the execution of the decree for a reasonable time to enable the judgment-debtor to obtain the stay order from the Court which passed the decree or the appellate Court. Sub-rule (1) says that if the property of the Judgment-debtor has been seized under execution, the Court which issued the execution, may order the restitution of such property pending the result of such application. Sub-rule (2) ibid relates to the power to enquire security from the judgment-debtor or to impose some other conditions upon him for restitution of the property. It reads as follows :-

"Rule 26(2). Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor, the Court small require such security from, or impose such conditions upon the judgment-debtor as it thinks fit."

It may be relevant to point out that the sub-rule was amended by Act No. 104 of 1976 and the words "the Court shall require" have been substituted for those "the Court may require". From a reading of the sub-rule it is clear that before ordering restitution of the property, the Court is bound to ask the judgment-debtor to furnish security or impose upon him such other conditions as it thinks fit. The sub-rule is mandatory and the Court cannot pass any order for restitution in its contravention. The intention of the Legislature is also clear from the amendment made by it in 1976. Therefore, I am of the view that an order directing the judgment-debtor to furnish security or imposing upon him other conditions, is sine qua non for granting restitutions of the property.

5 In the present case, the Court, while ordering restitution of the land failed to comply with the provisions of Rule 26(3) ibid. Therefore, the order is liable to be set aside.

6. For the aforesaid reasons, I accept the revision petition with costs and set aside the order of the Court. Costs Rs. 200/-. Petition accepted.