Swatanter Kumar, J.@mdashThis revision petition is directed against the order dated 13.11.1997 passed by the learned civil judge (Junior Division), Moga. By impugned order, the learned Executing court dismissed the application filed by the judgment-debtor under the provisions of Order 41, Rule 6(2) read with Section 151 of the CPC praying for stay of sale proceedings of attached property. State Bank of India filed a suit for recovery against Babu Singh. The suit was decreed in favour of the plaintiff. The appeal filed before the learned Ist Appellate Court against the judgment and decree of the trial Court was dismissed. Regular Second Appeal being R.S.A. No. 732 of 1996 against the judgment and decree of the learned Ist Appellate Court is pending in the High Court.
2. The stay against the judgment and decree of the trial Court was declined by the High Court was declined by the High Court in the aforestated regular second appeal. The Bank filed an execution application for the recovery of Rs. 46590.35 alongwith interest in terms of the decree. During the pendency of the execution application, the judgment-debtor filed the aforestated application on the ground that he is willing to furnish security for compliance of the decree and as such, the sale of the property attached in execution should be stayed. The application was contested by the respondent bank on the ground that pendency of regular second appeal does not operate as automatic stay of execution proceedings. Secondly that the application is totally malafide and the judgment debtor is trying to avoid the payment of decretal amount on frivolous grounds. Learned Executing Court after hearing the learned counsel for the parties dismissed the application vide order dated 13.11.1997 which is impugned in the present revision.
3. Learned counsel appearing for the petitioner while relying upon the cases of Firm Shri Veer Glass Works Vs. Firm Sonpal Vidya Charan Glass Bangles Merchant and Others, , Prahlad Kumar and Anr. v. Avtar Krishan (1985) P.L.R. 491, Ms. Prito v. Iqbal Singh (1978)80 P.L.R. 284 and Jangir Singh Ganda Singh and Ors. v. Mst. Nihal Kaur and Ors. (1965)67 P.L.R. 460 argued that in passing the impugned order, the learned Executing Court has committed jurisdictional error which requires correction by this Court in the present petition. The proposition of law stated in the aforestated judgments cannot be disputed. The provisions of Order 41 Rule 5 and Order 41 Rule 6(2) of the Code provide a different and distinct remedy to an applicant. They operate at different stages and in different sphere. The contention of the learned counsel is apparently misconceived because the learned Executive Court has not rejected the application as one not maintainable but has declined to exercise jurisdiction vested in it in favour of the applicant because no sufficient cause had been disclosed on record. If as a matter of rule the execution of every decree must be stayed just because the judgment debtor is prepared to furnish security then the very purpose of passing the decree would stand frustrated. Some bonafide of plausible ground must be made out for the Court to exercise jurisdiction under Order 41 Rule 6(2) of the Code. Merely the judgment debtor has filed an application, the Executing Court is certainly not obliged to stay the sale of the properly in execution proceedings. The provisions of Rule 6(1) and (2) of Order 41 of the Code proceed on the very premise that sufficient cause should be shown to the Court and then alone the Court would exercise jurisdiction in favour of the applicant and stay the execution in relation to sale of immovable property but subject to such terms and conditions as the Court may deem fit and proper in the facts and circumstances of the case. The Court has to exercise its discretion in consonance with the settled principles governing the subject keeping in view the facts and circumstances of each case. There is no concept of automatic stay of sale of property in execution indicated in these provisions nor could such be legislative intent behind these provisions. Even before this Court no cause was stated by the learned counsel for the petitioner which could constitute in law and equity sufficient cause within the meaning of these provisions. The mere fact that judgment debtor is unable to pay the decretal amount and therefore, stay of sale of property should be ordered upon furnishing security, cannot be a sufficient cause by itself.
4. For the reasons aforestated, I find no merit in this revision and the same is dismissed. However, if the petitioner approaches the Executing Court upon deposit of sufficient substantial part of decretal amount, the Court may consider such request of the judgment debtor in accordance with law.
