JUDGMENT
Viney Mittal, J.
1. Petitioner, Krishan Kumar, is a judgment debtor. A decree for recovery of money was passed against him and the other defendants in favour of the respondent-State Bank of Patiala. The aforesaid decree is presently under challenge in Regular Second Appeal No. 2591 of 2001 (Krishan etc. v. State Bank of Patiala and Ors. The aforesaid appeal is admitted. The record of the case further shows that a prayer for staying the execution of the decree moved by the aforesaid appellants in the regular second appeal was rejected by this Court.
2. The decree holder Bank took out the execution proceedings of the aforesaid decree. In execution proceedings, learned executing Court ordered the sale of immovable property of present petitioner, Krishan Kumar. At that stage, an application under Order 41 Rule 6(2) of the Code of Civil Procedure (hereinafter referred to as the “Code”) was filed by the present petitioner, Krishan Kumar, for staying the auction of the aforesaid immovable property. The said application was contested by the decree holder-Bank. The learned executing Court vide the impugned order dated April 9, 2004 has rejected the aforesaid application and has directed the immovable property of the present petitioner to be sold.
3. I have heard the learned Counsel for the parties at length and have also gone through the record of the case.
4. The factum of a money decree having been passed against the present petitioner and other defendants is not disputed by the learned Counsel for the petitioner. It is also admitted position between the parties that regular second appeal No. 2591 of 2001 against the aforesaid decree is pending in this Court and an application filed by applicant under Order 41 Rule 5 of the Code has been rejected by this Court. On the basis, learned Counsel for the respondent bank has vehemently argued that the prayer made by the petitioner before the executing court for staying the auction of the immovable property was not maintainable.
5. I find myself unable to agree with the aforesaid contention.
6. For the sake of convenience, provisions of Order 41 Rule 6(2) of the Code are being extracted as follows:
“Order 41 Rule 6(2): Where an order has been made for the sale of immovable property in execution of a decree and an appeal is pending from such decree, the sale shall, on the application of the judgment debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.”
7. A perusal of the aforesaid provision makes it abundantly clear that where an order has been made for the sale of immovable property in execution of decree and an appeal is pending from such decree, the sale shall on the application of the judgment-debtor to the court which made the order be stayed, on such terms as to giving security or otherwise as the court may deem appropriate. It is thus, clear that the provisions of Sub-rule (2) of the Code are mandatory and are quite independent and distinct from the power of the appellate Court to stay the execution of the decree under Order 41 Rule 5 of the Code. Whereas under Rule 5 of the Code it is for the appellate Court to stay the execution of the decree or not, during the pendency of the appeal, in a case where an order has been passed by the executing court for sale of immovable property and when an appeal against the decree is pending, the executing Court is bound in law, on an application being made by the judgment debtor to say the aforesaid sale. Of course while ordering the stay of sale, the executing Court can impose such terms as to giving security or otherwise as the court may deem appropriate. The language of the aforesaid Rule 6(2) of the Code also leaves an ample discretion with the court to impose such conditions as the court may deem appropriate and would leave a discretion with the execution Court even to insist upon the deposit of the entire decretal amount in a given case.
8. Even in a situation where the stay has been declined by the appellate Court under Rule 5 of the Order 41 of the Code, the executing Court is bound in law to stay the sale. The only discretion the execution court enjoys is to impose such conditions, or insist upon the deposit of the entire decretal amount, as may be deemed appropriate.
9. A perusal of the impugned order clearly shows that the executing Court was clearly oblivious of the provisions of Rule 6(2) of Order 41 of the Code. It has completely lost sight of the fact that the aforesaid provision is mandatory in nature.
10. Accordingly, the present revision petition is allowed. The order dated April 9, 2004 passed by the Additional Civil Judge (Senior Division), Safidon is set aside. The matter is remitted back to the learned executing Court to re-decide the application filed by the petitioner-judgment debtor under Order 41 Rule 6 of the Code, afresh in accordance with law.
11. The parties through their learned Counsel have been directed to appear before the learned executing Court on August 24, 2005. Copy dasti on payment.