JUDGMENT
1. This is an application to stay the execution of a decree. But the respondents’ answer is that it is not an application to stay the execution of a decree but to stay the proceedings in a suit following a preliminary decree, and he says that this Court has no jurisdiction to make the order asked for because the only Court that can make that order is the Court which has seizin of the appeal, namely, the Judicial Committee of the Privy Council.
2. The decree is a preliminary decree for partition, and a preliminary decree is defined under the Code as one in which further proceedings have to be taken before the suit can be completely disposed of. This decree ordering a partition is one of that nature because before the suit can be finally disposed of the partition has to be arrived at by the Commissioner, his report submitted to the Court and then the final decree passed. Now under order 41, Rule 5, it is provided that an appeal shall not operate as a stay of proceedings under a decree or order appealed from, except so far as the appellate Court may order. From these words we think it is clear that the Legislature intended that the Court which should have power to stay proceedings after a preliminary decree is the Court which has seizin of the appeal, and not the Court which passed the decree. But the Court which passed the decree has certain powers under order 45, Rule 13, which provides “that notwithstanding the grant of certificate for the admission of any appeal the decree appealed from shall be unconditionally executed unless the Court otherwise directs. “Then it gives the power on special cause to do certain things inter alia to stay execution of the decree appealed from, and lastly, to place any party seeking the assistance of the Court under such condition, or give such other directions respecting the subject matter of the appeal as it thinks fit, by the appointment of a Receiver or otherwise. It is clear that it gives power to stay execution of the decree; it does not give the power to stay proceedings under the decree. The learned Advocate General has argued that the power is included under Sub-section (d) which I have just read; but we do not think that the section bears the interpretation which he places upon it. Order 41, Rule 5, provides in express terms under what condition the proceedings under a decree can be stayed, and we think that if it had been intended, under order 45, Rule 13, to place that power in the hands of the Court whose decree is appealed from it would have been given in the same express term. In the absence of such express terms, we think that the application made by the learned Advocate-General must fail, and that the Court which has power to stay proceedings under the Code is the Court which has seizin of the appeal, namely, the Judicial Committee of the Privy Council.
3. The application is, therefore, refused, with costs 5 gold mohurs.
