Nagindas Bhukandas v. Ghelabhai Gulabdas .

Heaton, J.:— We are dealing with an interlocutory matter that arises out of an appeal filed under Cl. 2, Section 46 of the Provincial Insolvency Act, 3 of 1907. The appellant was sentenced to three months simple imprisonment. He has appealed.

2. There is no doubt that the appeal lies and not unnaturally he wants the sentence of imprisonment suspended until the appeal is disposed of. Otherwise he stands a very good chance of serving out the entire term of imprisonment before the appeal is heard. It has however, been objected—and this is the only point that seems to me really to need attention—that we have no power to suspend the imprisonment or release a person on bail. That argument however I think is mistaken. Cl. 2, Section 47 of the Provincial Insolvency Act, tolls us that in dealing with this appeal we are to follow the provisions of the Code of Civil Procedure. At least that is the effect of what that clause says. Now under the Code of Civil Procedure we have power to stay proceedings under an order appealed from. That I think is quite plain from O. 41, R. 5 of the CPC, and all we are asked to do is to stay proceedings under the order appealed from.

3. We do this by making an order which will secure the release of the appellant from jail on such terms as may be provided. We leave the terms to be settled by the District Judge, who will direct what security should be taken from sureties to secure the surrender of the appellant should he hereafter be called upon to surrender.

4. The District Judge, will make out an order to the jailor directing the release of the appellant when security to his satisfaction has been furnished.

5. Costs of this matter will be costs in the appeal.

Pratt, J.:— I concur. In regard to the argument that O. 41, R 5, does not apply because there is no decree to be executed, it seems to me that the provisions in that rule which provide for stay of proceedings under an order are applicable. For instance an order of arrest before judgment under O. 38, R. 4, would be appealable under Section 104(h) of the CPC, and it could not be contended that the Court of appeal in such a case would not have the power to stay further proceedings either by suspension of the sentence or directing the release of the appellant on his giving the bail. That this provision of the Code of Civil Procedure woald be applicable was apparently the veiw expressed by Bayley, Actg, C.J, in Hormarji Ardesir Hormarji, In the matter of (1).

G.P/R.K

6. Order accordingly.