Authored By : Francis Maclean, Banerjee

Francis Maclean, C. J.

1. This is an application to make also lute a Rule obtainedby the judgment debtor, calling upon the opposite party to show cause why, uponthe petitioner furnishing sufficient security to the satisfaction of the LowerCourt, execution of the decree in this case should not be stayed, pending thedisposal of the appeal to this Court. The pending appeal is from a certainorder in certain execution proceedings under a decree in the suit, and thejudgment debtor applies to have execution stayed pending the hearing of thatappeal. The Rule is opposed by the opposite party upon the ground that there isno power in this Court under Section 545 of the Code of Civil Procedure, orotherwise, to stay execution in a case of this class. I am glad we are notconstrained to take this view, which, I fear, might result in very graveinconvenience, if not injustice, to suitors in this country. Now what is theposition There is an appeal from an order in execution proceedings pendingbefore this Court; the record has been sent up here and this Court has nowseisin of the matter. That being so, this Court has as much power to stay proceedingsin these execution proceedings as the Lower Court itself would have, and it isreasonably clear that under Sub-section (c) of Section 244 of the Code of CivilProcedure the Lower Court has jurisdiction in all matters relating to stay ofexecution. It seems to me that, from this point of view, the Court hasjurisdiction to deal with the matter. The inconvenience, possibly injustice, ofthe opposite view would be extreme, though, in making this observation, I amnot unmindful of what has been said for the opposite party, that, if there bethis inconvenience, and the Court has no power to interfere, it is a matter forthe Legislature to make the requisite change in the law. I may add, too, thatin practice, what we are now doing has continually been done without objection.But, apart from this view, it is at least open to contention that the words inSection 545 of the Code of Civil Procedure, viz., "the Appellate Court mayfor sufficient cause order the execution to be stayed;" are not controlledby, or merely confined to, the case of an appeal against the decree itself. Itis not necessary to decide this, but the words are wide, and I do not know thatit would be necessary for the Court to put too narrow a construction upon them.The Rule must be made absolute.

Banerjee, J.

2. I concur with the learned Chief Justice in holding thatthis Court has power to stay execution in this case. The contention on behalfof the decree holder, who shows cause, is, that the Appellate Court has nopower, under Section 545 of the Code of Civil Procedure, to order stay ofexecution in this case, because there is no appeal pending against the decreesought to be executed, the only appeal pending being one against the orderunder Section 244 of the Code of Civil Procedure, disallowing Certainobjections raised by the judgment debtor, the petitioner before us, to theexecution of the decree in the Court below. That may be so Section 545 may notgovern this case. But that does not necessarily show that this Court has nopower to allow stay of execution. The appeal that is pending in this Courtbeing an appeal against an order of the Court below allowing execution toproceed, after overruling the objection of the judgment debtor, the executioncase is now really before this Court; and whilst the execution case is beforethe Appellate Court, I do not see how the Lower Court can allow execution to goon, the execution case being no longer before that Court. It is different,where the appeal in the Appellate Court is one against the decree which issought to be executed by the Court which made the decree in the first instance;for the appeal from the decree and the execution of the decree are, accordingto our procedure, treated as two separate cases, and, whilst the appeal fromthe decree is pending before the Appellate Court, the proceedings in executionof the decree may go on before the First Court, which made the decree. There,therefore, special provision was needed to empower the Appellate Court, to stayexecution; and such provision is to be found in Section 545 of the Code. Here,as I have pointed out above, the very case in which the decree is beingexecuted, being before the Appellate Court, the Appellate Court has the powerto stay execution in the same manner as the First Court, if the First Court hadsuch power; and that the First Court has the power to Stay execution of adecree is clear from Clause (c) of Section 244 of the Code of Civil Procedure.On this ground, then, I think it clear that this Court has the power to orderstay of execution in this case. It is, therefore, unnecessary to considerwhether, Section 545, read with Section 647 of the Code of Civil Procedure,does not give the Appellate Court the same power. A Full Bench of the AllahabadHigh Court in the case of Har Sankar Pershad : I. L. R.(1876) All. 178 held that the Appellate Court, in a case like the present, hadpower, under Section 338 of Act VIII of 1859 and Section 38 of Act XXIII of1861, to stay execution; and the provision of law, just referred to correspondto Section 545, read with Section 647 of the present Code. But our attentionhas been called to the case of Jadoo Monee Dam (1869) 11 W.R. 494 in which aDivision Bench of this Court took a different view. If it had been necessary todecide whether, under Section 545 read with Section 647, of the present Code,the Appellate Court has power to stay execution in a case like the present,perhaps, it would have been necessary to refer the matter to a Full Bench; butin the view we take it becomes unnecessary to go into that question.

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Pasupati Nath Bosevs. Nanda Lal Bose (26.04.1901 -CALHC)