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2005 DIGILAW 1008 (PNJ)

Bhagwan Singh v. Puran Chand

2005-09-21

JASBIR SINGH

body2005
Judgment Jasbir Singh, J. 1. This revision petition has been filed against order dated 29.1.200, vide which application of the petitioner, under Order 41, Rule 6 C.P.C. for grant of stay of execution proceedings was dismissed. Court below, while dismissing that application, has observed thus:- I find merit in the argument advanced by the learned Counsel for the respondent DH. There is no dispute that the executing Court has to stay sale in the execution proceedings, if sufficient cause is shown by the JD and he is willing to furnish security to the satisfaction of the Court, as held in the authorities relied upon by the Learned Counsel for the J.D. At the same time, the conduct of the JD cannot be ignored by the Court, while considering his request, for stay of the sale. The decree holder has placed on record, a copy of an order dated 12.2.1999, passed by the Learned District Judge, Sangrur, during the pendency of first appeal, preferred against the decree by the J.D., on his application, moved under Order 41, Rule 5 C.P.C. Vide this order, the execution proceedings were stayed by the Learned District Judge, till the disposal of the appeal, pending before him, subject to furnishing of bank guarantee of the amount, equal to the decretal amount, or on deposit of the amount in cash by the JD within a period of two weeks. It was also directed that the stay of the execution proceedings will also be subject to causing of no obstruction by the JD to execution of the decree, which may ultimately be passed. The JD has failed to place on record any documentary proof, that he had complied with the order passed by the Learned District Judge during the pendency of first appeal, pending before him. Even in the instant application, the JD has not offered, to furnish security to the satisfaction of the Court. Rather he has averred in the application, that attachment of his land, which has already been effected, is sufficient security (for) realisation of the decretal amount. As such, the JD by this conduct, has disentitled himself, from a relief prayed in the application. As per copy of the order dated 9.7.1999, passed by Hon ble High Court, the second appeal filed by the JD has been admitted, but the Hon ble High Court has not granted his plea, for staying the execution proceedings. As such, the JD by this conduct, has disentitled himself, from a relief prayed in the application. As per copy of the order dated 9.7.1999, passed by Hon ble High Court, the second appeal filed by the JD has been admitted, but the Hon ble High Court has not granted his plea, for staying the execution proceedings. 2. It is apparent from the records that conduct of the petitioner was not bonafide as such, he is not entitled to get any relief. Execution of the judgment and decree passed by the trial Court was stayed by the appellate Court below subject to furnishing of bank guarantee by the petitioner. He failed to comply with the order passed, his appeal was subsequently dismissed. He came to this Court in Regular Second Appeal, which was admitted, however, his application for stay, was dismissed. Neither before executing Court nor before this Court, any assurance has been given, to furnish any surety so that ultimately, if Regular Second Appeal is dismissedjudgment and decree could be satisfied. This Court feels that in view of his conduct, petitioner is not entitled for any relief. 3. Counsel for the respondents has placed reliance upon judgment of this Court in Babu Singh v. State Bank of lndia (1998-2)119 The Punjab Law Reporter 336, wherein while interpreting provisions of Order 41, Rule 6(2), it was held by this Court that where conduct of the applicant seeking relief by invoking, the provisions referred to above, is not bona fide, stay of decree by the executing Court under those provisions is not automatic. In para 3 of the judgment, it was held thus:- 3. Learned Counsel appearing for the petitioner while relying upon the cases of Firm Shri Veer Glass Works v. Firm Sonpal Vidya Charan, Baldev Krishan v. Punjab State Agricultural Marketing Board (1985-2)88 P.L.R. 106, Prahlad Kumar and Anr. v. Avtar Krishan (1985-2)88 P.L.R. 491, Ms. Prito v. Iqbal Singh (1978)80 P.L.R. 284 and Jangir Singh Ganda Singh and Ors. v. Mst, Nihal Kaur and Ors. (1965)67 P.L.R. 460 learned Executing Court has committed jurisdictional error which requires correction by this Court in the present petition. The proposition of law stated in the aforestated judgments cannot be disputed. The provisions of Order 41, Rule 5 and Order 41, Rule 6(2) of the Code provide a different and distinct remedy to an applicant. (1965)67 P.L.R. 460 learned Executing Court has committed jurisdictional error which requires correction by this Court in the present petition. The proposition of law stated in the aforestated judgments cannot be disputed. The provisions of Order 41, Rule 5 and Order 41, Rule 6(2) of the Code provide a different and distinct remedy to an applicant. They operate at different stages and in different sphere. The contention of the learned Counsel is apparently misconceived because the learned Executing Court has not rejected the application as one not maintainable but has declined to exercise jurisdiction vested in it in favour of the applicant because no sufficient cause had been disclosed on record. If as a matter of rule the execution of every decree must be stayed just because the judgment-debtor is prepared to furnish security then the very purpose of passing the decree would stand frustrated. Some bona fide of plausible ground must be made out for the Court to exercise jurisdiction under Order 41, Rule 6(2) of the Code. Merely the judgment-debtor has filed an application, the Executing Court is certainly not obliged to stay the sale of the property in execution proceedings. The provisions of Rule 56(1) and (2) of Order 41 of the Code proceed on the very premise that sufficient cause should be shown to the Court and then alone the Court would exercise jurisdiction in favour of the applicant and stay the execution in relation to sale of immovable property but subject to such terms and conditions as the Court may deem fit and proper in the facts and circumstances of the case. The Court has to exercise its discretion in consonance with the settled principles governing the subject keeping in view the facts and circumstances of each case. There is no concept of automatic stay of sale of property in execution indicated in these provisions nor could such be legislative intent behind these provisions. Even before this Court no cause was stated by the learned Counsel for the petitioner which could constitute in law and equity sufficient cause within the meaning of these provisions. The mere fact that judgment-debtor is unable to pay the decretal amount and therefore, stay of sale of property should be ordered upon furnishing security, cannot be a sufficient cause by itself. The mere fact that judgment-debtor is unable to pay the decretal amount and therefore, stay of sale of property should be ordered upon furnishing security, cannot be a sufficient cause by itself. In view of reasons given above, the revision petition fails and is accordingly dismissed.Parties are directed to appear before Executing Court on 18.10.2005.