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IN THE HIGH COURT OF ALLAHABAD
B. D. AGRAWAL
FIRM SHRI VEER GLASS WORKS - Appellant
Versus
FIRM SONPAL VIDYA CHARAN GLASS BANGLES MERCHANT - Respondents
CIV. REVN. 580 Of 1983
Decided On : 03/11/1985
CIVIL PROCEDURE CODE - ORDER 41, RULE 5 (1) AND RULE 6 (2) - STAY OF EXECUTION - DISTINCTION - POWER OF APPELLATE COURT AND EXECUTION COURT - SCOPE AND EXTENT.
Fact of the Case:
The petitioner obtained a decree against the respondents for recovery of a certain amount of money. The respondents filed an appeal against the decree, which was pending before the court. The respondents applied for a stay of execution of the decree, which was rejected by the court under Order 41, Rule 5 (1) of the Civil Procedure Code (CPC). The respondents then applied to the execution court for a stay of sale of immovable property in execution of the decree under Order 41, Rule 6 (2) of the CPC, which was granted by the court.
Finding of the Court:
The court held that the power of the appellate court to grant a stay of execution under Order 41, Rule 5 (1) of the CPC and the power of the execution court to grant a stay of sale of immovable property under Order 41, Rule 6 (2) of the CPC are distinct and not mutually exclusive. The court further held that the execution court has the power to grant a stay of sale of immovable property under Order 41, Rule 6 (2) of the CPC even if the appellate court has declined to grant a stay of execution under Order 41, Rule 5 (1) of the CPC.
Issues: Whether the execution court has the power to grant a stay of sale of immovable property under Order 41, Rule 6 (2) of the CPC even if the appellate court has declined to grant a stay of execution under Order 41, Rule 5 (1) of the CPC.
Ratio Decidendi: The court held that the power of the appellate court to grant a stay of execution under Order 41, Rule 5 (1) of the CPC and the power of the execution court to grant a stay of sale of immovable property under Order 41, Rule 6 (2) of the CPC are distinct and not mutually exclusive. The court further held that the execution court has the power to grant a stay of sale of immovable property under Order 41, Rule 6 (2) of the CPC even if the appellate court has declined to grant a stay of execution under Order 41, Rule 5 (1) of the CPC. The court reasoned that Order 41, Rule 6 (2) of the CPC is not made expressly subject to an order passed under Order 41, Rule 5 (1) of the CPC, and that there are certain distinct features in relation to both these provisions which may be described as under - (I) Rule 5 (1) confers power exercisable by the appellate Court and it is wide in the sense that it pertains to stay of execution by any mode including that of sale of immovable property; the power under R. 6 (2) is in essence restricted inasmuch as the stay contemplated by the execution Court therein is only in respect of sale of immovable property in execution. (ii) From the above it follows that even though on account of stay granted by the execution Court under R. 6 (2), the decree-holder may not proceed to sell the immovable property belonging to the judgment-debtors, it remains open to him to proceed to execution by other modes available as contemplated under S. 51 of the Code. (iii) the exercise of appellate jurisdiction under O. 41, R. 5 (1) is discretionary. The appellate Court has necessarily to take into account in that connection the relative hardship involved to the parties and such other factors as may be regarded to be relevant. No such elements are, however, to be found contained in so far as the R. 6 (2) is concerned. The execution Court has only to ascertain therein that the sale required in execution is of immovable property and that there is an appeal pending against the decree of which execution is sought. The mere pendency of an appeal is for purposes of this rule make enough ground for stay of sale of immovable property whereas R. 5 (1) contemplates in express terms that mere pendency of appeal does not amount to stay of execution. The execution Court has, of course, to obtain security under R. 6 (2) in order to be able to exercise powers thereunder. But subject to all this the grant of stay by the execution Court thereunder is mandatory.
Final Decision: The petition was dismissed.
( 1 ) THE short question raised in this petition is whether in a case where this Court has in the exercise of appellate jurisdiction declined to grant stay of execution in exercise of powers under O. 41, R. 5 (1), of Civil PC. , it remains open to the execution Court to stay sale of immovable property in execution of the decree in exercise of powers under O. 41,r. 6 (2), C. P. C. The petitioner obtained a decree against the respondents for recovery of certain amount of money. Against the decree, there is first appeal filed at the instance of the respondents which is pending decision before this Court. An application was made before this Court by the respondents for execution of the decree being stayed which has, however, been rejected under O. 41, R. 5 (1) of Civil P C. In execution of the decree the certain immovable property belonging to the respondents has since been attached. The question arose of sale thereof. The judgment -debtors made application under O. 41, R. 6 (2) before the execution Court which has on security being furnished by the said judgment-debtors stayed the sale of the said property which continues to remain under attachment.
( 2 ) SRI R. P Goel, learned counsel for the petitioner contends that in view of the stay having been declined by this Court it should not be taken to remain open to the execution Court below to grant stay in execution of the same decree. In granting any such stay, he further argues, the Court has to take into consideration the balance of convenience involved to the respective parties and the hardship resulting to the decree-holder as a consequence. On the other hand Sri Prakasn Gupta, learned counsel for the respondents urged that the jurisdiction exercised in this behalf are different and that it is open reasonably to reconcile the same.
( 3 ) ORDER 41, R. (5) and R. 6 (2) of Civil P C read as under -5 (1 ). "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. "6 (2 ). "where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor to the Court which made the order be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of. "
( 4 ) UPON a close scrutiny of these provisions it would appear that though to a certain extent they are overlapping, it may not be correct to say that one is negatived by the other. Rule 6 (2) is not made expressly subject to an order passed under R. 5 (1 ). We have then to see whether there is anything contained in these provisions which may be construed to restrain the jurisdiction exercisable under R. 6 (2) by necessary implication despite the fact that the said provision is not made expressly subject to what is contained under R. 5 (1 ). On analysis it will appear that there are certain distinct features in relation to both these provisions which may be described as under - (I) Rule 5 (1) confers power exercisable by the appellate Court and it is wide in the sense that it pertains to stay of execution by any mode including that of sale of immovable property; the power under R. 6 (2) is in essence restricted inasmuch as the stay contemplated by the execution Court therein is only in respect of sale of immovable property in execution. (ii) From the above it follows that even though on account of stay granted by the execution Court under R. 6 (2), the decree-holder may not proceed to sell the immovable property belonging to the judgment-debtors, it remains open to him to proceed to execution by other modes available as contemplated under S. 51 of the Code. (iii) the exercise of appella
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