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Miscellaneous Application No. 8 of 1955, decided on 25th April 1956.

, Ss. 151 and O. XLIII, (1) (d)‑Stay of execution pending appeal from order refusing to set aside ex‑parse decree‑Whether can be granted by appellate Court‑S. 151, C. P. C., cannot be invoked for an application for stay of execution pending appeal from an order refusing to set aside an ex‑parte decree Khawaja Nazir Ahmad's case A I R 1945 P C 18 Lilla e7airamdas' case 72 I A 121 (P C) followed.

A I R 1935 Mad. 43, A I R (1944) Mad. 161 distinguished.

S. Nasiruddin for Appellant.

R. J. A. Somjee for Respondent.

‑On 25th August 1954 an ex‑parse decree was passed in favour of the respondent for ejectment and mesne profits in respect of 4 flats which had been requisition ed by the appellant. The appellant applied to the lower Court to set aside the ex‑parte decree but this application was rejected on 13th September 1955. In October 1955, an application for execution was made, and on 5th November 1955 the appellants filed an appeal against the order rejecting their application to set aside the ex‑parte decree, and the appellant also filed an application for stay of execution. An interim stay was granted by this appellate Court.

Mr. Somjee, on behalf of the respondent, has argued that no stay could be granted under Order XLI, R. 5, Civil P. C., since there has been no appeal from a decree, but only an appeal against the order refusing to set aside the ex‑parte decree.

This has been conceded by Mr. Nasiruddin, but Mr. Nasiruddin relies upon section 151, Civil P. C. as enabling this Court to stay execution. Mr. Nasiruddin has relied upon A I R (1935) Mad. 43 where stay of execution was granted by the Appellate Court in an appeal against an order of the lower Court refusing unconditional leave to defend the suit. Mr. Somjee points out that that case differs from the pre sent in that the Appellate Court came to a decision on the merits that leave to defend had been wrongly refused.

In A I R (1944) Mad. 161, stay of execution was granted where an appeal had been made against an order dismissing an application for setting aside an ex‑parse preliminary appeal.

In Madras, Order XLI rule 5 had been amended so as to contain the following additional provision

..when the appeal is against a preliminary decree staying the making of a final decree in pursuance of a preliminary decree or the execution of any such final decree if already made.

The judgment in that case which was very carefully written after citation of many authorities has been carefully considered by us. The observations, however, of the Privy Council regarding section 561‑A of the Criminal P. C. which is the same as section 151, Civil P. C. for the purposes of the question in this case, were not brought to the notice of the learned Judge. In Khwaja Nazir Ahmad's case (A I R 1945 P. C. 18) it was pointed out that section 561‑A does not confer new powers but preserves inherent powers, while in Jairamdas' case A it was pointed out that the Criminal P, C. being exhaustive in the matter of bail, the High Court bad no power to grant bail in cases not provided for by the Code.

The sections and order of the Code lay down various provisions regarding stay, and it would appear to us after same hesitation; on the reasoning of the Privy Council in Jairamdas' case, that section 151 cannot be invoked.

The ex‑parte stay is therefore discharged and the applica tion dismissed with costs.

K. B. A./.A .H. Application dismissed

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