Seth, J. - (1.) THIS is an application under Order 41, Ruled, C. P. C, for the stay of the sale of a certain immovable property in the execution of the decree which is under appeal in this Court. Order 41, Rule 6(2) C. P. C., provides as follows: 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.
(2.) THE law, therefore, contemplates that an application should ordinarily be made . to the court which has made the order The remedy for stay being thus available by means of an application to the court below, it is but proper and expedient that the work of this Court should not be increased by such application. Mr. Gopi Nath Kunzru, learned ,counsel for the applicant, states that such an application Was made in the court below and was not granted. It appears from the affidavit filed in support of the application that the application that was made to the court below was an application for the stay of execution. Of course, the court below had no jurisdiction to stay execution of the decree. It has, however, often come to my notice that when an application is made in courts below for the stay of a sale of immovable property, in execution of a decree. such an application is generally disposed of by an order to the effect that the applicant should move the High Court for a stay order. This is wrong, for while a lower court cannot stay execution of a decree, pending decision of an appeal against that decree in this Court, it can certainly make an order under Order 41, Rule 6(2), C.P.C. Indeed it is its duty, when an application under that rule is made, to consider that application judicially and dispose it of by a proper order.
(3.) I reject this application. The applicant shall be at liberty to make an application under Order 41. Rule 6(2), C.P.C., in the court below. If such an application is made. it shall be judicially considered and decided.;