- (1.) THIS revision petition is against the order of the executing Court directing the petitioner to deposit a sum of Rs. 15,000 within 15 days from the date of order, failing which the petition shall stand dismissed.
(2.) THE facts which led to the order of the Court below are as follows: THE petitioner suffered a decree in O. S. No. 51 of 1985 on the file of the Subordinate Judge's Court, virudhachalam. THE petitioner filed A. S. No. 1205 of 1986 on the file of this court and prayed for stay in C. M. P. No. 11179 of 1989. This Court granted stay on condition that the petitioner should deposit a sum of Rs. 15,000 in the trial court within 8 weeks from the date of order, namely, 22. 9. 1989. THE petitioner failed to make the deposit and the stay stood vacated automatically. Thereafter, the petitioner filed E. A. No. 35 of 1990 under O. 41, Rule 6 (2) of the Code of Civil Procedure for stay of sale to be held in execution proceedings. That was opposed by the respon-dent-decreeholder. The court below after referring to the order of this court in C. M. P. No. 11179 of 1989 directed the petitioner to pay a sum of rs. 15,000 directly to the petitioner-decreeholder as a condition for stay. The court below also stated that the petition would stand dismissed, if the amount has not been paid. Not complying with the said order, the petitioner preferred this revision petition challenging the direction given by the Court below. The contention raised by the petitioner is that the Court had no jurisdiction to direct payment to the decreeholder directly and it had only jurisdiction to direct furnishing of security by the judgment-debtor. The provisions of O. 41, Rule 6 are as follows: ' Security in case of order for execution of decree appealed from- (1) where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court' may for like cause direct the Court which passed the decree to take such security. (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.' Rule 6 contemplates an order for security as well as order with suitable terms. In this case, the court below has thought fit, in the circumstances of the case, that the petitioner should be directed to pay the respondent decreeholder directly a sum of Rs. 15,000, as the petitioner had defaulted in complying with the order of this court made during the pendency of the first appeal. No exception can be taken to the said order. There is no doubt that the executing Court had jurisdiction to pass an order of this type. The matter is not res Integra. A Division Bench of this Court has in Thirumalai v. Town Bank, Pollachi, 67 M. L. J. 656:1531. C. 630. A. I. R 1934 Mad. 709, held that a Court can order not only furnishing of security, but also deposit of the decree amount in case as a condition for stay of sale under O. 41, Rule 6, C. P. C. Hence, the contention of the petitioner is wholly without substance.
(3.) LEARNED counsel for the petitioner submits that pursuant to the interim order of this Court, a sum of Rs. 10,000 has been deposited by the petitioner in the Court below and the petitioner should be permitted to deposit the balance of Rs. 5,000 by granting some time therefor. I am of the view that the request of the petitioner' s counsel should not be granted in this case. The reason is as follows. I take the view that the application filed by the petitioner under Rule 6 of O. 41, Code of Civil Procedure, before the Court below is itself not maintainable. The Rule no doubt refers to the pendency of an appeal against the decree and enables the executing Court to pass an order for stay on terms. Under Rule 5 of O. 45, Code of Civil Procedure, an appeal shall not operate as stay of proceedings, but the appellate Court may, for sufficient cause, order stay of execution of such decree. Rules 5 and 6 together would only show that where the appellate Court has not been called upon to exercise its powers of granting stay during the pendency of the appeal, the executing Court would be in a position to pass an order under Rule 6. If the appellate Court has exercised its powers under Rule 5 of O. 41 of the Code of Civil Procedure, then the party who fails to comply with the conditions imposed by the appellate Court cannot approach the executing Court to function under O. 41, Rule 6, Code of Civil Procedure. Learned counsel contends that Rule 6 is independent of Rule 5 and whether an application under Rule 5 filed before the appellate court has been granted or dismissed, it will be open to the executing Court to exercise its powers under Rule 6. If that construction is applied, it will lead to an absurd and incongruous situation that when a higher Court has refused to grant stay of execution of the decree, the lower Court can exercise its powers and grant stay of execution. That will only put the lower Court on a higher pedestal than the appellate Court. Such a situation could never have been contemplated by the Legislature. . Further, such a construction will lead to an inconsistency between Rule 5 and Rule 6. Under Rule 5, the Legislature has categorically stated that an appeal shall not operate as a stay. The matter of stay is left to the discretion of the appellate Court. But, the language used in Rule 6 is mandatory and if it is construed that the Court which passed the decree shall grant stay whether or not the appellate powers had been invoked, it would mean that a party would be automatically entitled to stay at the hands of the trial Court if only he files an appeal in the appellate Court. That will be directly contrary to Rule 5. Any construction which would result in inconsistency or conflict should be avoided. ;