JUDGMENT: The Court: This appeal is directed against an order dated 1st March 10, 2010 passed by the Hon’ble First Court disposing of an application under Order 41 Rule 6 (2) of the Code of Civil Procedure filed by the judgment-debtor His Lordship was pleased to grant stay of operation of the order dated February 6, 2001 and February 16, 2001 upon depositing the Title Deeds of the entire Dankuni properties by way of a security. The Hon’ble First Court was further pleased to restrain the judgment debtor from transferring, alienating, disposing of or otherwise creating any third party interest in respect of the aforesaid properties. The decree holder obtained a decree on 9th September 1987 for a sum of Rs. 95,67,537.31 together with the interest @ 9% p.a. in a Suit no. 1010 of 1979. Being aggrieved, the judgment debtor namely Shaw Wallace and Company Ltd. preferred an appeal being Appeal no. 322 of 1988. In the said appeal an application for stay of the operation of the said decree was filed. By an order dated February 27, 1999 the Hon’ble Appeal Court stayed the operation of the decree unconditionally until 15th March 1990 subject to the said judgment debtor depositing a sum of Rs. 25 lacs in cash within 15th March 1990 with Mr. G. C. Banerjee, Manager, Grindlays Bank Plc. (now Standard Chartered Bank), Church Lane Branch, Kolkata who shall hold the said sum as Receiver with further direction to secure the balance sum of Rs. 1.75 crores by way of bank guarantee in the manner as would appear therefrom. Pursuant to the said order the judgment debtor deposited a sum of Rs. 25 lacs with the said Receiver but sought for an extension of time to furnish the bank guarantee. Subsequently the said order of stay of the operation of the decree was vacated. The decree holder took out an application, being GA no. 3793 of 1999, applied for execution of the said decree after furnishing particulars of the various assets and properties of the judgment debtor, and also prayed for an order in terms of a tabular statement. Subsequently the said order of stay of the operation of the decree was vacated. The decree holder took out an application, being GA no. 3793 of 1999, applied for execution of the said decree after furnishing particulars of the various assets and properties of the judgment debtor, and also prayed for an order in terms of a tabular statement. The said application was disposed of by the executing court on September 7, 1999 granting an order of injunction restraining the said judgment debtor from charging, encumbering, selling, assigning disposing of or otherwise dealing with the lease hold interest and right in respect in the said “Wallace House” no. 4, Bankshall Street, Calcutta including the furnitures, fittings and equipments and other movables lying thereat and the “magnet House” M.M. Marg. Ballard Estate, Mumbai and also from charging, encumbering, selling disposing of or otherwise dealing with any of the properties and assets or withdrawing any money mentioned in Schedule “A”, “B”, “C”, “D”, “E” and “F” separately attached to the said application. By the said order it was clarified that the said injunction order would not prevent the defendant no. 2, Eastern Steamship & Enterprises (S) Ltd. from dealing with the properties and assets indicated in prayer (d) of the said application excepting in usual course of business. The judgment debtor thereafter filed an application being GA no. 5 of 2001, inter alia, for variation and/or modification of the stay order dated 7th September 1999 to the extent that the judgment debtor should be permitted to furnish the said land by way of a security to the satisfaction of the Registrar, Original Side of this Hon’ble Court to cover the entire decretal amount in addition to a sum of Rs. 60,63,861.00 already deposited with the Hon’ble court by way of a security. The judgment debtor specifically averred in the said application the following : “17. Defendant no. 3 is seized and possessed of and is otherwise well and sufficiently entitled to 35.27 acres of land situate at Mouza Dankuni, Dankuni Bill LL. No. 83, PS-Dankuni, Dist. – Hooghly, West Bengal (hereinafter refereed to as the “said Land”), valued at Rs. 5.29 crores as the sole and absolute owner thereof. In this connection, a valuation certificate from Messers K.C. Banerjee & Co…, a reputed firm of valuers/assessors is annexed hereto and marked with the letter “E”. No. 83, PS-Dankuni, Dist. – Hooghly, West Bengal (hereinafter refereed to as the “said Land”), valued at Rs. 5.29 crores as the sole and absolute owner thereof. In this connection, a valuation certificate from Messers K.C. Banerjee & Co…, a reputed firm of valuers/assessors is annexed hereto and marked with the letter “E”. The said valuation certificate may be treated as part and parcel of this application. 18. The said sum of Rs. 25,00,000/- deposited in cash by defendant no. 3 in terms of the said order of this Hon’ble court dated 27th February 1990 in the said Appeal, with the learned Receiver was deposited in short term fixed deposited with the Standard Chartered Grindlays, Church Lane Branch. The said sum with interest amounts today to Rs. 60,63,861.47p. 19. Defendant no. 3 is desirous of offering the said land by way of security to this Hon’ble Court with a view to covering the entire decretal amount, under the said impugned decree in addition to the said sum of Rs. 60,63,861/- which already is lying deposited in Standard Chartered Grindlays, Church Lane Branch, Calcutta by the Receiver appointed by this Hon’ble Court by way of security.” The aforesaid application was ultimately dismissed by an order dated 6th February 2001 with a further order to publish an advertisement notice of auction of the properties as enumerated in para 17 of the said application. Subsequent to the said order the said appeal no. 322 of 1988 was disposed of on 14th September 2001. A special leave petition was filed before the Hon’ble Supreme Court challenging the said order dated 14th September 2001 wherein the Hon’ble supreme Court has granted the leave but refuses to pass any interim order of stay and the said appeal is appearing in the list and has not been finally disposed of. The judgment debtor thereafter filed an application praying for stay of the operation of the order dated 6th February 2001 and 16th February 2001 on the basis of the following averments: “7. The defendant/judgment debtor no. The judgment debtor thereafter filed an application praying for stay of the operation of the order dated 6th February 2001 and 16th February 2001 on the basis of the following averments: “7. The defendant/judgment debtor no. 3 in view of the aforesaid facts and circumstances most respectfully states and submits that the Special Leave Petition is pending and in view of the order dated 6th February 2001 directing receiver to sell the property situate at Dankuni the said property be accepted as security ad the sale of the said property be stayed on such terms as to giving security and/or as this Hon’ble court thins fit and proper until the appeal is disposed of pending before the Hon’ble Supreme Court of India. The defendant/judgment debtor no. 3 most respectfully submits that the Special Leave Petition pending before the Hon’ble Supreme Court of India against the impugned order and judgment dated 14th September 2001. It is most respectfully submitted that the property situate at Dankuni against which an order for sale dated 6th February 2001 as already been passed in execution of the decree and for the due performance of the decree be stayed on such terms as to giving security or otherwise as this Hon’ble court may think fit and proper until the Special Leave Petition is disposed of. Furthermore in view of the pendency of the appeal before the Hon’ble Appeal Court being Appeal No. 149 of 2001, GA No. 1063 of 2001, Suit No 1010 of 1979 is pending for final disposal which is an appeal from an order made in the execution of such decree dated 6th February 2001 it is most respectfully submitted that this Hon’ble court be pleased to sty the ale of the said immoveable property in execution of a decree until the disposal of Special Leave Petition pending before the Hon’ble Supreme Court of India and before the Hon’ble Appeal Court 8. the defendant/judgment debtor no. the defendant/judgment debtor no. 3 most respectfully states and submits that the property situate at Dankuni be accepted as security and/or an order of stay be passed staying the operation of the execution of the decree dated 9th September 1987 and/or an order of stay be passed until the Special Leave Petition before the Hon’ble Supreme Court of India and the appeal against the orders dated 6th February 2001 and 16th February 2001 pending before the Hon’’ble Appeal Court until the disposal of the same on such terms as this Hon’ble Court may deem fit and proper.” The said application is disposed of by an impugned order by the Hon’ble First Court directing the judgment debtor to deposit all the title deeds pertaining to the aforesaid property with the Registrar, Original Side of this Hon’ble court. Mr. Ranjan Bachwat, learned Advocate assailed the said order on the ground that the Hon’ble First Court erred in staying the operation of the order dated February 6, 2001 and February 16, 2001 pending disposal of an appeal before the Hon’ble Supreme Court subject to the judgment debtor depositing by way of a security of the title deeds of the entire Dankuni property with the Registrar, Original Side of this Hon’ble court. He further contended that once the Appellate Court directed the judgment debtor to deposit the money as and by way of a security the direction by an executing court to deposit the title deeds as security amounts to overstepping its powers above the Appellate Court. He further contended that the Appellate Court passed an order for furnishing a bank guarantee as security, the executing court cannot pass an order contrary to the order passed by the appellate court. He further contended that the judgment debtor offered the aforesaid properties as security in an earlier stage of the proceeding and the same was rejected the same application cannot be taken out at the subsequent stage of the same litigation. Mr. Ratnanko Banerjee, learned Advocate appearing for the judgment debtor submitted that the power conferred upon the appellate court under Order 41 Rule 5 of the Code of Civil Procedure is distinct, separate and different than the power conferred upon the executing court under Order 41 Rule 6(2) of the said Code. Mr. Ratnanko Banerjee, learned Advocate appearing for the judgment debtor submitted that the power conferred upon the appellate court under Order 41 Rule 5 of the Code of Civil Procedure is distinct, separate and different than the power conferred upon the executing court under Order 41 Rule 6(2) of the said Code. He further contended that the aforesaid powers are not overlapping and there is no bar in passing an order by an executing court for stay of the sale of the property on such terms or security even if the appellate court refuses to pass an order of stay. In support of such contention Mr. Banerjee relied upon a judgment reported in AIR 1940 Cal 582: AIR 1940 Madras 82 : 44 CWN 701 : AIR 2006 Punjab & Haryana 22. He further submitted that the invocation of Order 41 Rule 6(2) of the Code can only be made if there is an appeal pending. He further submitted that an appeal before the Supreme Court is still pending and as such there is no fetter for invocation of the said provision. Mr. Banerjee strenuously contended that the Hon’ble First Court has exercised discretion in depositing the title deeds of the properties and as such the appeal against such discretion should not be entertained (1990 (Supp.) SCC 727). Having considered the respective submissions we are of the view that the powers conferred upon the appellate court under Order 41 Rule 5 is quite distinct, separate and different than the power conferred upon the executing court under Order 41 Rule 6(2) of the Code. The said proposition has been clearly and categorically laid down by a Division Bench in a judgment reported in AIR 1940 Cal 582 and AIR 1940 Madras 82 even if the appellate court refuses to grant stay, the executing court is empowered to pass an order under Order 41 Rule 6 (2) of the Code of Civil Procedure provided the conditions therein are fulfilled. On perusal of the judgments cited above we are of the same view that the power conferred under Order 41 Rule 5 is distinct, separate and different than the power conferred under Order 41 Rule 6(2) of the Code. The power of the appellate court to interfere with an order passed by the court below in exercise of the discretion vested by the statute was considered in a case of Manjunath Anandappa Vs. The power of the appellate court to interfere with an order passed by the court below in exercise of the discretion vested by the statute was considered in a case of Manjunath Anandappa Vs. Tammanasa & Ors. (2003) 10 SCC 390 the apex court was pleased to hold : “36. It is now also well settled that a court of appeal should not ordinarily interfere with the discretion exercised by the courts below 37. In U.P. Coop. Federation Ltd. V. Sunder Bros. the law is stated I the following terms (AIR p. 253, para8) “8. It is well established that where the discretion vested in the court under section 34 of the Indian Arbitration Act has been exercised by the lower court the appellate court should be slow to interfere with the exercise of that discretion. In dealing with the mater raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court wold have taken a different view may not justify interference with the trial court’s exercise of discretion. As is often said, it is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate court to interfere with the trial court’s exercise of discretion. This principle is well established; but as has been observed by Viscount Simon, L.C., in Charles Osenton & Co. V. Johnston, AC at p.138 : ‘The law as to the reversal by a court of appeal of an order made by a Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of El settled principles I an individual case.’” (Emphasis supplied) As has been held in the said judgment Manjunath Anandappa Vs. Tammanasa & Ors. Tammanasa & Ors. (supra) the power of the appellate court to interfere with the order passed by the trial court in exercise of the discretion should be exercised slowly and the interference should not be made merely on the ground that a different view should have been taken. It has further been held that if it appears to the appellate court that in exercise of its discretion the trial court has acted unreasonably or capriciously or has ignored the relevant fact then it would certainly be open to the appellate court to interfere with such discretionary order. In the case before us more than one attempt has been made by the judgment debtor to put the same properties as security and the same has been dismissed by an order of the co-ordinate Bench. The conduct of the judgment debtor as it appears in avoiding to make the payment of the decretal amount or putting the money has security to such decretal amount is evident. Repeated attempt to get rid of deposit of the decretal mount or furnishing of bank guarantee and placing the Dankuni properties as security is deplorable. The facts as stated above cannot be ignored by us and we have no hesitation holding that the order directing the judgment debtor to deposit all the title deeds of the Dankuni property as security as condition for stay of the order of sale of the properties is unreasonable. We, therefore, set aside that part of an order by which the Hon’ble First Court directed the judgment debtor to deposit the title deed of the entire Dankuni properties as and by way of a security with the Registrar, Original Side of this Hon’ble court. It appears that in terms of the said decrees the judgment debtor is liable to pay a sum of Rs. 7,51,48,125/-. However, the judgment debtor has deposited with the bank a sum of Rs. 1,88,44,760/- thereby leaving a sum of Rs. 5,63,03,365/- and such amount should be sufficiently secured either by depositing the entire amount with the said Receiver or by furnishing the bank guarantee covering the said amount within six weeks after the reopening of the summer vacation. During such period there shall be an unconditional stay of the sale of the said properties. 5,63,03,365/- and such amount should be sufficiently secured either by depositing the entire amount with the said Receiver or by furnishing the bank guarantee covering the said amount within six weeks after the reopening of the summer vacation. During such period there shall be an unconditional stay of the sale of the said properties. Upon depositing the same amount or upon furnishing the bank guarantee the Registrar, Original Side shall return all the title deeds which has been deposited by the respondent in terms of an order under challenge forthwith The instant appeal, is thus, disposed of. However, there will be no order as to costs.