- (1.) THE Court.?THE instant application has been made by the judgment debtor under Order 41, Rule 6(1) of the Code of Civil Procedure. Order 41 Rule 6 provides as hereunder :- "6(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 requisition 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 immoveable property in execution of a decree, and an appeal is pending from such decree, the same 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." THE petitioner judgment-debtor made an application under sections 30 and 33 of the Arbitration Act, 1940 inter alia for setting aside the award. THE said application of the petitioner was dismissed by an order dated 9th March, 1993. THEreafter a decree was passed in terms of the award, by the Court taking Arbitration matters on 7th May, 1993. THE petitioner thereafter preferred an appeal from the order dated 9th March, 1993 whereby the petitioner's application for setting aside the award was dismissed. THEre have been several proceedings in the said appeal and the matter with respect to the said appeal went upto the Hon'ble Supreme Court. A Special Leave Petition was made by the decree-holder from the order of the Division Bench of this Court dated 23rd September, 1993. THE appeal before the Supreme Court being Civil Appeal No. 7599 of 1993 (M/s. K. Saroja Nakshatri v. Sadasukh Kabra and Co. and Ors.) was disposed of by an order dated November 26, 1993 which is inter alia to the following effect :- "Special Leave granted." "We, therefore, set aside the impugned order dated 23rd September, 1993 and remit the matter to the High Court to be considered as Review Application against the order of 21st June, 1993. We would like the High Court to dispose of this Review Application at an early date as execution proceedings are in progress. We think it would be in order if the Review Application is disposed of within a months time without raising the question of delay since the petition has already been filed. THE appeal will stand disposed of accordingly with no order as to costs". As a result of the said order of the Hon'ble Supreme Court the matter now stands remitted to this Court to be considered as review application against the order dated 21st June, 1993. I understand from the parties that the said review application is still pending for disposal.
(2.) DURING the pendency of the appeal aforesaid as preferred by the judgment debtor, the decree holder on or about 11th August, 1993 applied for execution of the said decree and from time to time various orders were passed is the said execution proceeding. The Executing Court being the Interlocutory Bench of this Court, which takes execution applications appointed a Receiver over the membership card of the judgment debtor of the Calcutta Stock Exchange with a direction upon the Receiver to sell the same and also for withdrawing the security deposit of the judgment debtor lying with the Calcutta Stock Exchange. From the order made in execution an appeal was preferred by the judgment debtor on 2nd September 1993 and as already stated above the petitioner during the pendency of the said appeal and pursuant to order dated 2nd September 1993 passed by the Hon'ble Appeal Court, paid a sum of Rs. 200,000/- to the decree holder without prejudice to the rights and contentions of the parties. I understand that the temporary stay granted by the Appeal Court in the appeal from the order made in execution stood vacated but the application for stay as also the appeal from the order made in execution is still pending before the Hon'ble Appeal Court. According to the petitioner judgment debtor the said card of the petitioner of the Calcutta Stock Exchange is valued at not less than Rs. 50,00,000/-. According to the petitioner the said card is not easily available in market and in the event the said card is sold there is no possibility of restitution in the event the petitioner succeeds in the pending proceeding in terms of the order of the Hon'ble Supreme Court. According to the petitioner, the decree holder is a house-wife. The husband of the decree holder is an employee of Tata Engineering Locomotive Co. Ltd. at Jamshedpur. According to the petitioner in the event of payment of decretal dues either by the petitioner or by sale of the said card to the decree holder, the said decree holder will not be able to restitute the same to the petitioner, in case the petitioner ultimately succeeds in the pending appeal and/or the review application. The petitioner relied on a full bench judgment of this Court reported in AIR 1929 Calcutta 689 (Taleb Ali and Another v. Abdul Aziz and Others) as also the judgments reported in AIR 1960 Calcutta 22 (Scottish Union National Insurance Co. v. Sm. Saraswati Sajnani) and AIR 1971 Calcutta page-512 (P. C. Ray and Co. (India) Pvt. Ltd. v. Union off India) for the proposition that if the petitioner succeeds in the said review application as also in the said appeal then and in that event, the decree passed pursuant to the judgment upon award by the Arbitration Court will also stand set aside and/or can be set aside by the Appeal Court.
(3.) HE also relied on the judgment reported in AIR 1940 Calcutta 582 (Dhirendra Nath Roy v. Sailaj Kumar Base) where a Division Bench of this Court held as follows : "Where an order has been made for sale and an application under O. 41, R. 6 has been made to the Court, the Court should stay the sale on suitable terms and the Court must consider what terms are suitable. The fact that the stay has been refused under O. 41, R. 5 does not justify the Court in refusing to exercise the jurisdiction vested in it under O. 41, R. 6 : 44 CWN 701, Rel. on." HE also relied on another judgment of another division bench of this Court reported in AIR 1940 Calcutta 543 (Murari Mohan Bandury v. Krishnapada Bandury and others), where it was held as follows : "Under the provisions of O. 41, R. 6(2) the Court which passed the decree has full powers to stay a sale on taking security from the judgment debtor. It need not, and ought not to, grant a limited stay order and ask the judgment debtor to obtain a further order of stay from High Court." HE also relied on the judgment reported in AIR 1944 Madras 82 (Rukmani Ammal v. Subramania Sastrigal and another), where a Division Bench of Madras High Court while considering the provisions of order 41 Rule 6 Sub rule 2 observed held as follows : "Sub-rule 2 of R. 6 of O. 41 is quite clear that when an order has been made for the sale of immoveable property in execution of a decree and as 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. There is no limit to the discretion of the Court in imposing terms and the Court is not without power to deal with a vexations judgment-debtor if the Court is obliged to stay a sale when such an application is made. If the Court does not stay but proceeds to sell, the Court commits what is more than an irregularity. It amounts clearly to an illegality.";