Law: Civil Procedure Code (V of 1908)

Section: 13(2),13(c),151

Civil Procedure Code (V of 1908)--------   ----O. XLV, r-. 13 (2) (c) and S. 151-Stay of execution of decree pending application for certificate for preferring appeal to Supreme Court-Stay cannot be granted unless under inherent powers under S. 151, C. P. C. and that only to prevent irreparable iniury to Judgment-debtor.   Held, that even if the applicant is within the terms of Order XLV, rule 13 execution proceedings should not be stayed unless the Court is satisfied that a substantial loss to judgment -debtor would be avoided by the issuance of stay order. It requires a stronger case to invoke the extraordinary powers of the Court under section 151, C. P. C.   To attract the application of that section a case of irreparable loss should be made out.   Order XLV, r. 13 (2) (c) contemplated stay of execution on the grant of a certificate for appeal to the Supreme Court. Before such grant the question whether the judgment debtor under these provisions would be entitled to a stay order was premature.   That question could be considered only after a certificate was granted.   Where the decree was for joint possession of land and rendition of accounts, there was no apprehension of any irreparable 'loss arising to the applicant for certificate, though the case would have been different if the decree had been for actual physical possession of the decree-holder's share by partition.   When the applicant was not within terms of O. XLV, r. 13, aid of extraordinary powers of the Court provided in section 151 of the Civil Procedure Code, in prevention of judicial casualties could not be invoked in his favour.   Narumal v. Jugatmal A I R 1925 Sind 216 ; Jewan Ram Gangaram & Co. v. Commissioner for Port of Calcutta A I R 1939 Cal. 308 and Ramanathan v. Viswanathan A I R 1939 Mad. 50 mentioned.   Mukerji Nath Das v. Saroj Kumar Das A I R 1934 Cal. 823 ref.   Date of hearing : 10th September 1958.       JUDGMENT   Sher Afzal Khan brought a suit for the possession of 21 / 128th share in agricultural land and some houses which belonged to Sohbat Khan and also for rendition of account of income from…