TRIBENI SAHU Vs. BHAGWAT BUX

JUDGEMENT

(1.) The questions referred for our decision are as follows: (i) When an appeal has been filed against a decree for money, has the Appellate Court jurisdiction to entertain an application made under the 3 paragraph of Section 546 of the Civil P. C., and to pass an order staying, pending the disposal of the appeal, the sale of immoveable property of the Judgment- disposal of the in execution of that deoree? (ii)Has the case of Kunj Lal Marwari V/s. Bahitram Marwari (1904) 8 C.W.N. 381 been correctly decided? In order to answer these questions it seems necessary to examine closely the provision of Secs.545 and 548 of the Civil P. C..

(2.) Section 545 provides for the stay of execution of any decree. But gives the Appellate Court, as well as the Court which passed the decree, a discretionary power, on the three conditions therein laid down, to stay execution of an appealable decree, even before an appeal against the decree sought to be executed has been preferred.

(3.) Section 546 deals with two distinct cases--the only connection between them being that, in both of them, an appeal has been preferred against the decree sought to be executed. Paragraph 1 of Section 546 provides that the Court which passed the decree, before permitting execution to proceed when an appeal is pending, shall take security from the judgment-creditor for the restitution of the property which may be taken in the execution Paragraph 2 gives the Appellate Court discretionary power to pass a similar order. Paragraph 3 deals with an entirely different case. It provides for the stay of a sale of immoveable property in execution of a decree for money, when an appeal is pending against the decree, on the judgment-debtor giving such security as the Court which passed the decree thinks fit. The terms of paragraph 3 are mandatory. It prescribes that the sale of immoveable property in execution of a decree for money only shall be stayed on security being furnished.