H.S. Vodayar vs The Vijaya Bank Ltd. and Another

Panchapakesa Ayyar, J.—This revision petition raises an interesting question of law, namely, whether a mofuasil Court can u/s 94(e), Civil

P. C., or Order 21, Rule 68 (2), Civil P. C., or Section 151, Civil P. C., stay a sale in execution of a decree in a suit against a third party pending

the disposal of a suit filed under Order 31, Rule 63, Civil P. C., by a claimant to the properties brought to sale against the claim order.

The petitioner, Vodayar, claimed one machine of a printing press attached by the Vijaya Bank, respondent 1, as belonging to respondent 2, the

Badavara Bandhu Press, the judgment-debtor in O. S. No. 371 of 1943 on the file of the District Muusif, Mangalore, to be his, and filed a claim

petition, R. I. A. No. 1266 of of 1948, under Order 21, Rule 58, Civil P. C. That petition was dismissed. Thereupon he filed a claim suit (O. S.

No. 84 of 1949) under Order 21, Rule 63, Civil P. C. for staying the sale of the printing machinery attached under the decree in O. S. No. 371 of

1943 pending the disposal of O. S. No. 84 of 1949 on such terms as the lower Court deemed fit. The lower Court considered that it had no

jurisdiction to stay the execution of the decree or sale u/s 94(e) or Section 151, Civil P. C. or Order 21 Rule 58 (2). Civil P. C., and dismissed the

application. Hence, this revision petition. Rajagopalan J. granted interim stay of all further proceedings in execution of the decree in O. S. No. 371

of 1948, on 31-5.1949, in C. M. P. No. 3906 of 1949, filed by the petitioner, Vodayar, C. M. P. No. 4693 of 1949 is filed by the Vijaya Bank

to vacate the interim stay.

I have perused the entire records and heard the learned counsel on both sides. The learned counsel for the petitioner urged before me that a

claim suit has been held in Krishnappa Chetti v. Abdul Khader Sahib, 26 M. L. J. 449 : A. I. R.1915 Mad. 495, to be only a continuation of a

claim petition, and that a stay of sale can be granted, under Order 21, Rule 58 (2), Civil P. C. and Section 94(e) and 161, Civil P. C., on suitable

terms not only in a claim petition but also in its continuation in a claim suit, as the sale is only postponed ""pending the investigation of the claim or

objection"" in detail in the claim suit. I agree. Even if Order 21, Rule 58(2), Civil P. C. and Section 94(e), Civil P. C. do not apply, I think that the

Court will have ample power u/s 151, Civil P. C. in cases like these, to grant a stay of execution or sale on terms calculated not to injure the

interests of the decree-holders. The lower Court was in my opinion, wrong in saying, ""The execution of a decree cannot be stayed u/s 151, Civil P.

C."" The rulings in Beeram Ankalu Reddi Vs. Beeram Chinna Ankalu Reddi, , Ahamed Abdul Sukkoor Vs. Vallabhadas Kanji Firm and Others, ,

Galastaun v. Dinsha, 31 C. W. N. 653 : A. I. R. 1927 Cal. 681, Fitzholmes v. Waryam, A. I. R.1923 Lah. 514 ; 76 I.C. 419, Bhagwan Kaur v.

Harnam, 149 P. L. R. 1910 : 82 P. R. 1910 and Mohammad Aijas Ali Khan and Another Vs. Basant Rai and Others, , show that the Court has

got a power to order stay of execution, though within narrow limits, u/s 151, Civil P. C. also. The ruling in Ahamad Abdul Sukkoor Vs.

Vallabhadas Kanji Firm, , shows that this power extends also to the Mofussil Courts, and I too agree. Vadapalli Varadacharlu Vs. Khandavilli

Narasimha Charlu, , relied on by the learned counsel for respondent, cannot be preferred, in my opinion, to these rulings, especially when we are

concerned with a prayer for stay of sale in a claim petition which is a continuation of the suit, and Order 21, Rule 58 (2), Civil P. C. and Section

94(e), Civil P. C. also will apply. A Court of justice, equity and good conscience must have powers to pass such orders as may be necessary for

the ends of justice, or to prevent abuse of the process of the Court, u/s 151, Civil P. C. If, for instance, an attached family heirloom, or elephant or

gem or painting, having a great sentimental value for the claimant, is to be sold while his claim suit against a claim order is pending, it may become

impossible for the claimant to recover it, and there will be great injustice caused to the claimant, if he eventually succeeds in his suit. That will apply

also to many other cases. After all, the decree-holder is concerned, as the learned counsel for the decree-holder frankly admitted in this case, only

with safeguarding his own interests. The learned counsel for the respondent decree-holder said that the printing machinery in question will

deteriorate and come down in value, it not sold at once, and that if stay of sale is granted, there must be provision made not only for the

continuation of the attachment of this machinery but also for providing immovable property security for Rs. 1,500 (the decree is for some

thousands) in order to safeguard his interests against depreciation etc. I consider this request to be proper.

I, therefore, set aside the order of the lower Court refusing stay of this sale, and pass a conditional order of stay of sale, under Order 21, Rule

58 (2), Civil P. C., and Ss. 94 (e) and 151, Civil P. C. In case the petitioner furnishes immovable property security for Rs. 1,500 to the

satisfaction of the learned District Munsif, Mangalore, by 3 p. m. on 15-10-1950, to provide for possible injury to the decree-holder by staying the

sale, the petition will be allowed without costs, and stay of sale will issue, and the attachment of the machinery will continue; but, if the petitioner

fails to furnish the said security by the sale date, this petition will stand dismissed with costs. C. M. P. No. 4693 of 1949 is dismissed without

costs. No orders are necessary in C. M. P. No. 3806 of 1949 which is closed without any orders as to costs.