Full Judgment
Grimwood Mears, C.J.
1. In this case the appellant is appealing to the Privy Council in respect of proceedings brought and which have up to the present resulted in a preliminary decree of this Court, which decides that the property in dispute in the action is joint property and is liable to partition, Proceedings to ascertain the respective shares are pending or in process of taking place in the court below, and the appellant has applied to this Court with a view to our staying such proceedings. He has tiled an affidavit in which he gives reasons which prima facie are good reasons for assenting to that application if in fact we have the power to grant it, But our attention has been called to the provisions of Order XXV, Rule 13, and to the case of Laliteswar Singh v. Bhabeshwar Singh (1909) 9 C.L.J. 561, from which it appears clear that as the matter now stands we have no power to stay these proceedings. Now at one stage of the matter I thought it extremely desirable that an application should be made to the court below so that if possible the Judge should make an order adjourning the partition proceedings until the decision of the Privy Council was known. But it has been pointed out that the property consists of a few houses and that the movable part of it is in cash and shares, things whose value is easily ascertainable. Further, it has been pointed out that when the respondent to the appeal, the present holder of the decree, applies to execute the decree, it will be then open to the appellant to urge before the Judge of the lower court reasons why execution should be stayed. I think generally that it would be desirable, and I have no doubt that it is the practice, for Judges in the lower courts to be very cautious in these cases, and where they find an appellant pursuing an appeal expeditiously to be very chary of removing property from the possession of one litigant and placing it in the hands of another who may ultimately be found by the Privy Council never to have been entitled to it. Therefore, if an application is made to execute this decree, I hope that the learned Judge in the court below will give due consideration to all the circumstances and will do his best to prevent the property already in the possession of the appellant from passing into the hands of the respondent until the decision of the Privy Council is made known.
Pramada Charan Banerji, J.
2. I also am of opinion that this application cannot be entertained under the provisions of Order XLV, Rule 13. The proceedings in the court below are not proceedings in execution of a decree, but are proceedings in the suit for a final decree for partition. The decree which has already been made is a preliminary decree and this decree has to be made absolute before execution can be taken out. At present the case has not proceeded beyond the stage of a suit in which a preliminary decree has been passed and in which further proceedings are to be taken for the making of a final decree. Order XLV, Rule 13, only empowers this Court to direct stay of execution in certain cases where sufficient reason is shown. In the present case no final decree has been passed and no proceedings have been taken for execution of a decree. Therefore the present application is not justified by the provisions of the rule to which I have referred and it seems to me to be premature. When an application for execution is made after the passing of the final decree it will then be time for the present applicant to make such application as he may deem proper. In my opinion this application should be dismissed with costs.
3. By the Court: The order of the Court is that the application is dismissed with costs.