Decided on April 26,1901

NANDA LAL BOSE Respondents


Maclean, C J - (1.) THIS is an application to make also lute a Rule obtained by the judgment debtor, calling upon the opposite party to show cause why, upon the petitioner furnishing sufficient security to the satisfaction of the Lower Court, execution of the decree in this case should not be stayed, pending the disposal of the appeal to this Court. The pending appeal is from a certain order in certain execution proceedings under a decree in the suit, and the judgment debtor applies to have execution stayed pending the hearing of that appeal. The Rule is opposed by the opposite party upon the ground that there is no power in this Court under Section 545 of the Civil P. C., or otherwise, to stay execution in a case of this class. I am glad we are not constrained to take this view, which, I fear, might result in very grave inconvenience, if not injustice, to suitors in this country. Now what is the position? There is an appeal from an order in execution proceedings pending before this Court; the record has been sent up here and this Court has now seisin of the matter. That being so, this Court has as much power to stay proceedings in these execution proceedings as the Lower Court itself would have, and it is reasonably clear that under Sub-section (c) of Section 244 of the Code of Civil Procedure the Lower Court has jurisdiction in all matters relating to stay of execution. It seems to me that, from this point of view, the Court has jurisdiction to deal with the matter. The inconvenience, possibly injustice, of the opposite view would be extreme, though, in making this observation, I am not unmindful of what has been said for the opposite party, that, if there be this inconvenience, and the Court has no power to interfere, it is a matter for the Legislature to make the requisite change in the law. I may add, too, that in practice, what we are now doing has continually been done without objection. But, apart from this view, it is at least open to contention that the words in Section 545 of the Code of Civil Procedure, viz., "the Appellate Court may for sufficient cause order the execution to be stayed;" are not controlled by, or merely confined to, the case of an appeal against the decree itself. It is not necessary to decide this, but the words are wide, and I do not know that it would be necessary for the Court to put too narrow a construction upon them. The Rule must be made absolute. Banerjee, J.
(2.) I concur with the learned Chief Justice in holding that this Court has power to stay execution in this case. The contention on behalf of the decree holder, who shows cause, is, that the Appellate Court has no power, under Section 545 of the Civil P. C., to order stay of execution in this case, because there is no appeal pending against the decree sought to be executed, the only appeal pending being one against the order under Section 244 of the Civil P. C., disallowing Certain objections raised by the judgment debtor, the petitioner before us, to the execution of the decree in the Court below. That may be so Section 545 may not govern this case. But that does not necessarily show that this Court has no power to allow stay of execution. The appeal that is pending in this Court being an appeal against an order of the Court below allowing execution to proceed, after overruling the objection of the judgment debtor, the execution case is now really before this Court; and whilst the execution case is before the Appellate Court, I do not see how the Lower Court can allow execution to go on, the execution case being no longer before that Court. It is different, where the appeal in the Appellate Court is one against the decree which is sought to be executed by the Court which made the decree in the first instance; for the appeal from the decree and the execution of the decree are, according to our procedure, treated as two separate cases, and, whilst the appeal from the decree is pending before the Appellate Court, the proceedings in execution of the decree may go on before the First Court, which made the decree. There, therefore, special provision was needed to empower the Appellate Court, to stay execution; and such provision is to be found in Section 545 of the Code. Here, as I have pointed out above, the very case in which the decree is being executed, being before the Appellate Court, the Appellate Court has the power to stay execution in the same manner as the First Court, if the First Court had such power; and that the First Court has the power to Stay execution of a decree is clear from Clause (c) of Section 244 of the Code of Civil Procedure. On this ground, then, I think it clear that this Court has the power to order stay of execution in this case. It is, therefore, unnecessary to consider whether, Section 545, read with Section 647 of the Civil P. C., does not give the Appellate Court the same power. A Full Bench of the Allahabad High Court in the case of Har Sankar Pershad (1876) I.L.R. 1 All. 178 held that the Appellate Court, in a case like the present, had power, under Section 338 of Act VIII of 1859 and Section 38 of Act XXIII of 1861, to stay execution; and the provision of law, just referred to correspond to Section 545, read with Section 647 of the present Code. But our attention has been called to the case of Jadoo Monee Dam (1869) 11 W.R. 494 in which a Division Bench of this Court took a different view. If it had been necessary to decide whether, under Section 545 read with Section 647, of the present Code, the Appellate Court has power to stay execution in a case like the present, perhaps, it would have been necessary to refer the matter to a Full Bench; but in the view we take it becomes unnecessary to go into that question.;

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