Mahomedalli Essabhoy vs Dharamsey Jaitha and Co.

John Beaumont, Kt., C.J.—This is an application for stay of execution. It appears that there were arbitration proceedings in which an award was made against the applicant, and they presented a petition to the Court to upset the award and that petition was refused. There is an appeal to this Court from the order of refusal.

Mr. Bahadurji on behalf of the respondents takes the point that we have no jurisdiction under Order XLI, Rule 5, Civil Procedure Code, to grant a stay, because that rule only applies where there is a decree or order appealed from, and he says that the award, although it could be enforced as a decree u/s 15 of the Indian Arbitration Act, 1899, is not technically a decree. That contention is, I think, technically correct, but in my view we have inherent jurisdiction to grant a stey of execution under an award where the application to set aside the award has been refused, and there is an appeal to this Court in the matter. In exercising our inherent jurisdiction, I think we should follow the analogy of Order XLI, Rule 5, and see that the conditions laid down in that rule are complied with. Here the amount involved is substantial, viz., Rs. 15,000, and if, in fact, it is not due now, I think it necessarily follows that the applicant will suffer substantial loss by having such a large sum levied against them in execution. The applicant has, under an ex parte decree which he obtained from this Court, given security to the satisfaction of the Prothonotary, and therefore Order XLI, Rule 5(3)(c) has been complied with. We think, therefore, that there should be a stay until the hearing of the appeal. The security of course should remain. Liberty to apply to expedite after the lists are prepared.