1. This is an application for stay of sale of a house and grove belonging to the appellants. The respondents obtained a decree for sale art foot of a mortgage, and the mortgaged, property was sold. The sale proceeds did not prove sufficient for satisfaction, of the entire mortgage money and the mortgagees obtained a decree over under O. 34, R. 6, and proceeded to attach other property belonging to the judgment-debtors whose house and grove were attached. They objected to the sale of the house on the ground that they were agriculturists and therefore their residential house could not be sold in execution of a decree. Their objection has been disallowed by the; lower Court. Hence this appeal. By this application they apply for an order directing stay of sale pending their appeal.
2. There is no doubt that, unless the stay prayed for is granted, the appeal to this Court will be wholly in fructuous. The learned advocate for the respondents contends that, as the appellants have not furnished the security required by R. 5, O. 41 of the CPC, no order of stay can be granted. I do not think this contention has any force. O. 41, R. 5, applies to cases in which the decree under appeal is capable of execution and is sought to be executed. In the case before me there is no appeal from the decree which is sought to be executed.
3. The appeal is from an order passed by the Court executing the decree dismissing the judgment-debtor's objection that the property attached was not liable to be sold. In these circumstances R. 5, O. 41 of the CPC, has no application. I think it reasonable to stay the sale pending the Appeal. Order accordingly.
R.K
4. Stay ordered.