- (1.) THIS is an application for stay of execution of a decree for injunction An Interim order was made on the 29th April, 1954 and the decree holder was asked to show cause.
(2.) THE decree holder showed cause and the only ground on which the stay application is opposed is that the decree has not yet been executed and so the application is premature. In support of his argument, Shri P. C. Bhandari on behalf of the decree holder relies upon a single Judge ruling of Lahore High Court in the case of Narain Singh vs. Anoop Singh (l ). It was held following the ruling of Bombay High Court in Janardhan vs. Nilkantha (2) that no order of stay of execution can be made, if there is no application for execution of a decree under appeal pending before any court. On behalf of the appellant Shri D. P. Gupta has relied upon the rulling of a Division Bench of Bombay High Court in the case of Laxman Ramchandra vs. Shridhar Waman Johri (3) in which the ruling of the same High Court in the case of Janardhan vs. Nilkantha (2) was considered and it was held that in that case the provisions of sec 546 of the old Civil Procedure Code with corresponded to R. 6 of O. 41 of the present Civil Procedure Code had been considered and not of sec. 546 corresponding to O. 41, r. 5 of the present Code and it was consequently held that under the said provision no application for stay could be made before an execution application was filed. I have considered the arguments of both the learned counsel. In the Division Bench case of Bombay High Court referred to above application for stay was made under O. 41, r. 5 before any execution application was filed and it was held that under the said rule an application could be made for stay of execution even before, the filing of execution application. The ruling in Janardhan's case (2) was distinguished on the ground that there the provisions corresponding to those of R. 5 of O. 41 were considered and not the provisions of R. 5 of O. 41. Allahabad High Court in Phushi vs. Mohammad Tasdiq Hussain Khan 4) cited by the learned counsel for the appellant has also held that the power conferred upon an appellate court under sub-rule (l) of R. 5 of O. 41 can be exercised if there is an appeal pending in that court and sufficient cause has been shown for making an order of stay of execution of the decree and for the exercise of this power, it is not necessary that an application for execution should have been made or be pending at the time when an application for stay of execution be made. Both the judgments relied upon by the learned counsel for the appellant judgment-debtor are very considered judgments and the judgment of the Lahore High Court relied upon by the learned counsel for the decree holder simply relies upon the ruling in Janardhan's case (2) which has been distinguished in the case of Laxman Ramachandra (3), cited above. With respect I agree with the view taken in the ruling cited by the learned counsel for the judgment-debtor and find myself unable to agree with the ruling of Lahore High Court in Narain Singh's case (I ). Mr. P. C. Bhandari says that no security has been taken from the judgment-debtor. I agree that the security ought to have been taken. Application for stay of execution is allowed and the interim order dated 29th April. 1954, is made absolute subject to the condition that the judgment-debtor files within a month from today sufficient security to the satisfaction of the execution court for the due performance of the decree or order which may be ultimately binding upon him. In case the said security is filed the order of stay of execution shall be made absolute, otherwise it shall stand discharged. The interim order dated the 29th of April, 1954, shall meanwhile continue. .;