ORDER
1. Heard Sri Rasheed Khan holding brief for Sri Vigneshwara Shastry, learned Counsel for the petitioners.
2. This revision arises from the judgment and order dated 2-7-1994 passed by the I Additional Munsiff, Hubli, on an application under Order 41, Rule 6(2) read with Section 151 of the CPC rejecting to grant the order to stay the sale of property in execution decree.
3. The facts of the case in the nut-shell are that, the plaintiffs-respondents decree holders had filed the suit for a decree for specific performance of contract or in alternative for return of sale advance with interest. The Trial Court decreed that suit vide judgment and order dated 18-8-1991. Feeling aggrieved from the judgment and decree, the defendants preferred the appeal which is pending before the Civil Court namely R.A. No. 112 of 1991. I am informed that appeal is yet pending. The applicant had also filed an application for interim stay under Order 41, Rule 5 of CPC. The Appellate Court granted a stay order subject to the condition of furnishing security deposit amount under the decree within certain time given by the Court. But on account of failure of the appellant-judgment-debtor, the Appellate Court vacated the stay order. Thereafter the applicant moved an application under Order 41, Rule 6 before the execution Court on 9-12-1993 for stay of further proceedings in the execution case. But the stay application was also rejected i.e., after contest the application was rejected by the execution Court. The applicant filed the second application under Order 41, Rule 6 for the relief. The Trial Court opined that once the stay order was granted with certain conditions to deposit the amount and the judgment-debtor failed and did not comply with the orders passed, no equity remained in his favour to grant the stay order and rejected the application. So feeling aggrieved from that order, judgment-debtor has come up before this Court by way of revision under Section 115.
4. It has been contended on behalf of the revisionists-applicants by the learned Counsel that Order 41, Rule 6 is mandatory and obligatory. There is no discretion for the execution Court to refuse to stay the sale of the property as the Court could have imposed stringent conditions while granting the stay order as it has the discretion to impose stringent conditions. But it has no discretion to reject the application for stay of sale during pendency of the appeal. Learned Counsel invited my attention to Rule 6(2) of Order 41 and also invited my attention in the case of Laxman Omana Muchandi v Ramachandra Omana Muchandi, and contended that the Court had no option to reject it and when it has rejected the stay order, the Court has failed to exercise its jurisdiction under Order 41, Rule 6(2) and failed to perform duty imposed on it.
5. Contesting the contentions of the learned Counsel for the applicants, Sri N.S. Bhat holding brief for Sri R.B. Deshpande, learned Counsel for the respondents contended that no doubt execution Court had got power to refuse to grant the stay, but granting of stay is also an equitable remedy and a person who has not complied with the orders of the 1st Appellate Court granting the stay order subject to the conditions and requiring the judgment-debtor to furnish security for the same, when the judgment-debtor himself has not complied with the directions of the Appellate Court and did not comply with the conditions of the stay order granted earlier, he is not entitled to move the application for stay and get any stay order. So the Court did not commit any error of law or jurisdiction. Learned Counsel further contended that earlier an application has been moved on 9-12-1993 under Order 41, Rule 6 and the same has been rejected. So this present application is barred. He further contended justice requires that revision be dismissed.
6. I have applied my mind to the contentions raised by the learned Counsels for the parties. Revision under Section 115 is maintainable against an order which amounts to a case decided and the Court has been conferred with jurisdiction to examine when the order impugned is the result of usurpation of the jurisdiction not vested or to examine whether the Court below has illegally refused to exercise the jurisdiction vested in it or has acted illegally and with material irregularity in exercise of its jurisdiction and if the order impugned is allowed to stand and exist, injustice may flow from it or irrepairable loss may be caused to the party, then the Court may examine it. In the present case, decree has been passed in favour of the plaintiff-respondents, as an alternative relief to decree for specific performance of the contract. The defendants had to comply with the conditions. The lower Appellate Court granted the stay order, no doubt, subject to certain conditions and the judgment-debtor did not comply with it.
Order 41, Rule 5(1) and Rule 6(2) reads as under.-
“Rule 5. Stay by Appellate Court.-
(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except sofaras the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree”.
“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.
A reading of Rules 5(1) and 6(2) of Order 41 clearly reveals that the Legislature has expressed its intention by use of expression “may” in Rule 5(1) and “shall” in Rule 6(2). In Order 41, Rule 5(1) it is provided that an appeal by itself shall not operate as a stay of proceedings under a decree or order appealed from except sofaras the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree. Further, it is provided that, but the Appellate Court may for sufficient cause order stay of execution of such decree. Rule 5(1) gives a discretionary power to grant stay order and the Appellate Court is conferred with that power. It is one of the trite principles of law of interpretation that when Legislature uses two distinct expressions dealing with the same subject-matter, it has to be presumed ordinarily that the Legislature intended distinctly. Otherwise, it could have used the same expression. Here under Rule 6(2) it says that sale shall be stayed no doubt on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of. No doubt, for an application to be moved and an order to be passed under Rule 6(2) one of the necessary conditions is that there has been an order passed for sale of the property in execution of a decree and an appeal is pending from such decree and then judgment-debtor moves an application for stay of sale to the Court making the order, no doubt, stay has to be granted, slaying sale but with certain conditions to be followed. But the Court which ordered sale of immovable property has to pass an order staying the sale. When I so opine, I find support for my view from the Division Bench’s decision of this Court in the case of Laxman Omana Muchandi, supra. After referring to Rule 6(2), Division Bench observes:
“The correct view, which, in my opinion, we should take is that once there is an appeal from the decree and an order is made for sale of the immovable property in the execution of that decree, the Court which has directed the sale is without any option but to order stay of sale if the judgment-debtor asks for it. The only area in which the Court exercises discretion is in the matter of conditions which it may impose subject to which the sale could be
stayed. Although the power exercisable in that area is plenary and full, there is no such power to refuse stay of sale”.
7. This is being the position of law, when the execution Court which had ordered sale on being approached by the judgment-debtor was duty-bound to grant the stay order staying sale of immovable property until disposal of the appeal, but may be subject to conditions and terms which it could have imposed. On the non-fulfilment thereof, it could have provided that stay order shall automatically stands vacated. But it could not by itself refuse granting stay of sale in the very first instance, may it be that the applicant-appellant had made an application for stay before the Appellate Court which granted the stay order subject to conditions and the judgment-debtor did not or could not comply with it. No doubt, power is discretionary to grant the stay order. But the Court could have granted stay order. But here when the Legislature uses the word that “sale shall be stayed”, it means that the duty of the Court is to grant stay order may be subject to conditions. Earlier application made by the applicant on 9-12-1993 had been rejected. On what ground it has been rejected, is not clear. But rejection of the application initially made to it for stay had been tantamount to refusing to exercise jurisdiction vested.
8. Thus considered in my opinion, that order is not operative as if it had been a case that stay which had been granted by the execution Court subject to conditions and the same having been flouted, the stay order might have been vacated. Because when conditional order is granted, it has to be complied with and a person flouting the order is not entitled to enjoy the benefit of the order.
9. In this view of the matter, it appears that the Court below failed to exercise jurisdiction and powers vested in it by refusing to pass an order of stay of sale of the property or it may be that it acted contrary to the mandate of law, then this will be a case of acting illegally. No doubt, this is a case where jurisdictional error has been committed. The provisions of Section 115 gives a mandate to the Court not to interfere with an order of the Court below unless it is shown that if the order is allowed to stand, it may result in failure of justice or in causing irrepairable loss and injury to the party aggrieved. As regards the present case, it appears to be a case that if stay of sale is not granted, consequences may be that his property may be sold and once the sale is allowed, he will be made to suffer loss. As such, I think it is a fit case for interference. This Court, as such, allows this revision and set aside the order passed by the Court below. It is further ordered that the sale of the property pending appeal shall not be made and shall remain stayed including the confirmation of sale and further proceedings thereunder, but subject to the condition that the applicant shall deposit 50% of the amount due under the decree in the Court below and also furnish security for balance 50% of the decretal amount within a period of four months from the date of deposit. In case any of the conditions is not fulfilled, the stay order shall automatically stands vacated and revision shall be deemed to have been dismissed. Subject to the above observations and directions, the revision is hereby allowed.
The deposit of the 50% ot the decretal amount shall be made within a period of ten weeks from today. Let the copy of the operative portion of the order be supplied to the revisionist-applicant within three days from the date of his moving the application for the copy of the operative portion of the order.