CHANDY Vs. THOMAS
LAWS(KER)-1968-11-13
HIGH COURT OF KERALA
Decided on November 15,1968

CHANDY Appellant
VERSUS
THOMAS Respondents

JUDGEMENT

- (1.) The Civil Revision Petition raises a legal point arising in execution. The suit, in which a decree was passed for a huge sum of Rs. 31,044 and odd with 6% interest thereon, was instituted as early as 1950 (O. S. 177 of 1950). The decree itself is dated 4-11-1964 and there are two appeals pending, one against the preliminary decree and the other against the final decree. Meanwhile, the decree holder wanted to execute the decree and the judgment debtor wanted to get stay of execution. In appeal, the judgment debtor, who is the appellant, moved for stay. But he did not comply with the condition insisted upon in the appellate order passed in CMP. No. 8761 of 1965 that he should deposit Rs. 10,000 as a condition for the stay. The judgment debtor appears to have moved the High Court again by CMP. 7827 of 1956 for permission to alienate two items of properties. But permission was disallowed, although the judgment debtor went ahead with the sale notwithstanding the refusal of permission and the attachment of the properties. He deposited Rs. 20,000 in the lower court out of the sale proceeds. When the decree holder wanted to proceed with the sale of the properties of the judgment debtor in execution of the decree, he moved for stay under O.41 R.6(2) of Civil Procedure Code. The Executing Court allowed the stay application and the present revision challenges the validity of the stay order.
(2.) The learned Subordinate Judge took note of the conflict of decisions on the question of law raised before him. Is an Executing Court bound to grant stay of execution when the decree holder seeks to sell immovable properties in execution of the decree which is appealed against In any case, when an appellate court has declined stay of execution, is it open to the lower court to grant stay of execution by attachment and sale, when the judgment debtor moves that court under O.41 R.6(2) The ruling reported in Satyanarayanamma v. Nageswara Rao ( 1959-11 Andhra Weekly Reporter 439) supports the decree holder, while a later decision of the Mysore High Court reported in Laxman v. Ramachandran (AIR 1964 Mysore 232) vindicates the judgment debtor's contention. A recent decision of the Punjab High Court reported in Jangir Singh v. Mst. Nihal Kaur (AIR 1965 Punjab 438) seems to take the same view as the earlier Mysore decision. I am inclined to take the Mysore line because an independent power is given to the Executing Court to grant stay in those cases where the decree is sought to be executed by sale of immovable properties. Indeed, the executing Court is obliged to grant stay, the policy behind such compulsory stay being that the property might otherwise get into the hands of stranger auction purchasers and even if the decree is later reversed in appeal, the judgment debtor may not be able to salvage his property thus sold away. Therefore, when a decree is under challenge in appeal, and the proceedings in execution take the form of sale of immovable property, the law enjoins upon the executing Court to stop the sale on such terms and conditions as to giving of security or otherwise as the Court thinks fit. The stay itself has to be granted only until the disposal of the appeal. O.41 R.6(2) is a special provision calculated to save the judgment debtor in a special situation till the duration of the appeal. That jurisdiction cannot be taken away by the appellate court's order of refusal of stay under O.41 R.5(1) of Civil Procedure Code. I, therefore, hold that the Executing Court was right in staying the sale, or in taking the view that it was bound to stay the sale.
(3.) The further question remains as to whether reasonable conditions should not be imposed, while granting stay, or rather what should be the terms on which the stay is to be granted so as to give some relief to the decree holder. I have already stated that this litigation was started long ago and the decree holder has not been able to realise anything out of the amount decreed to him which has now swollen considerably on account of the arrears of interest which have snowballed. A sum of more than Rs. 70,000 is due under the decree, according to the counsel for the decree holder. A sum of Rs. 20.000 is lying in deposit to the credit of this decree in the lower court. I direct that a sum of Rs. 4,000 will be allowed to be withdrawn out of the aforesaid amount deposited by the decree holder without any conditions as to security and that if immovable property is furnished for the balance of Rs. 16,000 then, that sum also will be allowed to be withdrawn. (The security by way of immovable property may be of property his own or of some one else). Subject to this modification, the order of the lower court will remain. The revision petition is dismissed, subject to the above modification. No costs.;


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