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Jitendra Narayan Deb and ors. Vs. State of Assam - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberS.C.A. Nos. 3 to 7 of 1952
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 45, Rule 13 and 13(2); Constitution of India - Article 133
AppellantJitendra Narayan Deb and ors.
RespondentState of Assam
DispositionApplication rejected
Prior history
Sarjoo Prosad, C.J.
1. In these applications the petitioners have prayed that pending the hearing of the appeals to the Supreme Court the Opposite Party be restrained from taking steps to take over possession of the estate of the petitioners under the Assam Management of Estates Act, 1949. The appeals to which these applications relate have been consolidated and leave to appeal has been granted by this Court in view of the fact that various constitutional questions were involved. The petiti
Excerpt:
- - now that this court has held that the act in question is a good and valid legislation, this court cannot direct that the authorities should refrain from lawfully acting under it, in other words, issue a sort of injunction or mandamus at this stage, although, so far as this court is concerned, the decision as to the validity of the legislation is final......civil p. c. it is obvious that order 45, rule 13 (2) (d) has no application to the case. the rule in question runs as follows: 'the court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the court, place any party seeking the assistance of the court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.' on the plain language of the rule it can have no application to the present case. but the learned counsel has referred to a decision of the calcutta high court in 'sarat kumar roy v. official assignee of calcutta', air 1931 cal 79 (a), where a wider view of the rule has been taken. in the case in question the learned.....
Judgment:

Sarjoo Prosad, C.J.

1. In these applications the petitioners have prayed that pending the hearing of the appeals to the Supreme Court the Opposite Party be restrained from taking steps to take over possession of the estate of the petitioners under the Assam Management of Estates Act, 1949. The appeals to which these applications relate have been consolidated and leave to appeal has been granted by this Court in view of the fact that various constitutional questions were involved. The petitioner now makes the prayer aforesaid on the strength of Order 45, Rule 13(2)(d), Civil P. C. It is obvious that Order 45, Rule 13 (2) (d) has no application to the case. The Rule in question runs as follows:

'The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court, place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.'

On the plain language of the rule it can have no application to the present case.

But the learned counsel has referred to a decision of the Calcutta High Court in 'Sarat Kumar Roy v. Official Assignee of Calcutta', AIR 1931 Cal 79 (A), where a wider view of the rule has been taken. In the case in question the learned Judge, who delivered the judgment, merely observed that under the provisions of Order 45, Rule 13, it seemed to him, that the words were wide enough to cover a case where a mortgage suit was sought to be stayed during -the pendency of an appeal before the Privy Council. The learned Judge also observed that it had been ruled in several cases that an order such as might be necessary in the circumstances in a particular case, pending the hearing of an appeal to His Majesty in Council, could be made under the provisions of the section; and each case must depend on its own facts, it being impossible to set out exhaustively the cases that might be brought within the ambit of the section from time to time. The decision may be justified on its own facts; but I am afraid there is nothing in it or in the language of Rule 13 aforesaid to warrant the contention now put forward by the petitioners.

The case in question was therefore distinguished in a decision of the Allahabad High Court in--'Atma Ram v. Beni Prasad', AIR 1934 All 585 (B). Sulaiman. C. J. as he then was, pointed out with reference to this case that apparently the attention of the learned Judges who decided the case was not drawn to the previous Full Bench ruling of the same Court to which there is no reference in the judgment. The Full Bench ruling in question refers to a decision of the Calcutta High Court in--'Lalitessur Singh v Bhabessur Singh', 13 C. W. N. 690 (C). This decision is of great importance. In that case their Lordships decided that the High Court had no power to stay proceedings in a suit following a preliminary decree for partition against which it had granted leave to appeal to the Privy Council as the Privy Council had seisin of the appeal and the Privy Council alone could pass such an order. They discussed the provisions of Order 45, Rule 13 and they held that although it gave power to stay execution of decree, it did not confer any power on the Court to stay proceedings under the decree, They also rejected the contention based on the language of Sub-clause (d) of the rule and held that Clause (d) did not bear the interpretation which was sought to be placed, upon it. It also does not appear that the learned Judges in that case purported to exercise their inherent powers to stay proceedings or that their inherent powers were even invoked on behalf of the parties It is therefore difficult to hold that Order 45, Rule 13, Clause (2) (d) has any application to the case with which we are concerned.

2. Mr. Ghose next contends that we should interfere and restrain the opposite party from taking over possession of the estates of the petitioners in the exercise of our inherent powers under Section 151 of the Code. In this context he has again relied upon the decision in --'AIR 1931 Cal 79 (A)', as also on another decision of the same Court in--'Sailendra Nath v. Saroj Kumar Das', AIR 1934 Cal 823 (D).

There is some divergence of opinion as to whether the Court should in its inherent powers grant stay of proceedings in these circumstances. Sulaiman C. J. in the Allahabad case refused to recognize that there was any such inherent power in the Court. The learned Judge observed that there was no inherent jurisdiction in the High Court to direct Courts subordinate to it to proceed in a particular manner; and Section 151, C. P. C., did not confer any jurisdiction on the Court which did not ordinarily exist; it merely preserved the inherent powers of the Court which it possessed. Even though it may be assumed that we have inherent powers in appropriate cases to stay proceedings, the question still arises whether in these cases we ought to exercise such inherent power. The appeals in question arise out of proceedings under Article 226 of the Constitution & it is true at the time when the rule nisi was granted, this Court issued an ad interim rule injuncting the authorities concerned from taking steps within the provisions of the Assam Management of Estates Act. Now that this Court has held that the Act in question is a good and valid legislation, this Court cannot direct that the authorities should refrain from lawfully acting under it, in other words, issue a sort of injunction or Mandamus at this stage, although, so far as this Court is concerned, the decision as to the validity of the legislation is final. In the circumstances, these applications cannot be entertained and are accordingly dismissed. Hearing fee five Gold Mohors.

Ram Labhaya, J.

3. I agree.


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