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Kuralla Ratnam Vs. Mokhamatla Bhadraiah and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn No. 1439 of 1967
Judge
Reported inAIR1969AP236
ActsCode of Civil Procedure (CPC), 1908 - Sections 6, 15 and 151 - Order 21, Rule 60 - Order 41, Rule 5
AppellantKuralla Ratnam
RespondentMokhamatla Bhadraiah and anr.
Appellant AdvocateK.B. Krishnamurthy and ;P. Sri Rama Murthy, Advs.
Respondent AdvocateT. Veerabhadrayya, Adv.
Excerpt:
.....of execution of decree - stay petition not maintainable - petitioner applied for conversion of stay application into application for injunction - court converted stay petition into injunction petition - no prejudice caused to decree holder - converted application remitted to lower court. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no..........petition into an injunction petition. there is no prejudice caused to the decree-holder respondent by such conversion. i, therefore, grant the application and direct that the application be converted into one for injunction . 6. since the lower court dismissed the petition on the ground that it had no jurisdiction to grant interim relief. whether it be a stay application or an injunction application and did not go into its merits and consider them, i remit the converted application to the lower court for its disposal on merits. the lower court will deal with the application on merits in accordance with law. the revision petition is accordingly allowed. but, in the circumstances, i make no order as to costs. the conversion application is allowed. 7. petition allowed.
Judgment:

1. The revision petitioner was the petitioner in the lower Court. She filed a suit under Order 21, Rule 63, Civil P.C. for setting aside an order dismissing her claim petition in E. A. No. 153 of 1967. She came to file the claim petition and the suit in the following manner:

2. The respondent in the revision petition filed O. S. No. 49 of 1961 on the file of the Subordinate Judge's Court, Eluru for possession against two defendants. That suit was decreed with costs, In execution of the decree for costs in O. S. No. 49 of 1961, the respondent attached certain properties as if they belonged t the second judgment debtor. Thereupon the petitioner, who is the daughter of the second judgment-debtor filed E. A. No. 153 of 1967 claiming that the two items of the properties so attached, belonged to her and were in her possession, as they had been conveyed to her under a gift deed dated 20th September, 1963 by the second judgment-debtor. The claim petition, was, however, dismissed. It appears a revision petition was filed in this Court in C. R. P. No. 1039 of 1967 against the dismissal of the claim petition and that the revision petition was dismissed in limine. Thereupon, the petitioner filed the suit O. S. No. 329 of 1967 on the file of the District Munsif's Court, Tadepalligudem under Order 21 Rule 63 C. P. C. for setting aside the dismissal order on her claim petition. Along with the suit she also filed I. A. No. 537 of 1967 for stay of the sale of the properties that was pending in EP. No. 109 of 1966 in O. S. No. 49 of 1961 on the file of the Subordinate Judge's Court, Eluru. The lower Court dismissed the application for stay on the ground that it had no jurisdiction to stay the sale of the properties which were going on in a superior Court viz, the Subordinate Judge's Court Eluru. In that view it did not go into the merits of the application. Aggrieved by that order of dismissal, the petitioner came up to this Court by way of this revision petition.

3. It does not appear from the order of the lower Court that any objection was taken by the respondent that the lower Court had no jurisdiction to entertain the suit as such . Evidently the objection that was taken, was only in respect of the power of the lower Court to stay the execution of the decree of by the Subordinate Judge's Court. Eluru. It must be noticed that the execution was going on only to recover costs which amount is admittedly within the pecuniary jurisdiction of the lower Court. It, therefore, follows that the lower court had jurisdiction to entertain the suit should have been laid in the Subordinate Judge's Court, with this limited pecuniary value of the suit. Therefore, if the lower Court has jurisdiction to entertain the suit, it must have the necessary power or jurisdiction to pass all necessary and appropriate orders in it.

4. That the Court has power a claim suit to stay the execution of the decree in the course of execution of which the claim application is filed, is held by the Madras High Court in H. S. Vodayar v. Vijaya Bank Ltd., : AIR1951Mad321 , with which I respectfully agree. If the Court has power in a claim suit to stay the execution of the decree, the same principle should apply even if the decree, the execution of which is sought to be stayed, is that of a superior Court. If it is not so, undesirable results and grave hardship would ensue. Because of the limited value of the claim in the suit it could not have been filed in the superior Court, Viz., in the Subordinate Judge's Court. The suit could have been only filed in the District Munsif's Court, which had the necessary pecuniary jurisdiction and if the Court cannot pass any interim orders, its final decision in the suit also could have no force. Neither substantive law nor procedural law ever envisages such a helpless situation. Justice must be meted out to the parties, wherever they are found to be in need of it. The Court has inherent power to d so under Sec. 151, Civil P.C. 1 cannot, therefore, agree with the trial Court that it has no jurisdiction to grant interim relief pending the claim suit. I am of the view that the lower Court has jurisdiction to issue the necessary directions. if it is otherwise satisfied about the merits of the application.

5. However, an application for stay of execution of a decree in another suit is not the proper remedy. Realising this, Sri K. B. Krishna Murthy, the learned counsel for the petitioner has filed an application for converting the application for stay into an application for injunction. I do not see any objection in granting the application and converting the stay petition into an injunction petition. There is no prejudice caused to the decree-holder respondent by such conversion. I, therefore, grant the application and direct that the application be converted into one for injunction .

6. Since the lower Court dismissed the petition on the ground that it had no jurisdiction to grant interim relief. whether it be a stay application or an injunction application and did not go into its merits and consider them, I remit the converted application to the lower Court for its disposal on merits. The lower Court will deal with the application on merits in accordance with law. The revision petition is accordingly allowed. But, in the circumstances, I make no order as to costs. The conversion application is allowed.

7. Petition allowed.


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