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Mohd. BurhanuddIn Vs. Savitri Bai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 1719 and 1720 of 1972
Judge
Reported inAIR1975AP168
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 5
AppellantMohd. Burhanuddin
RespondentSavitri Bai
Appellant AdvocateB.V. Subbarayudu, Adv.
Respondent AdvocateJagannadha Sastry and S.V. Kondapi, Advs.
DispositionPetition allowed
Excerpt:
civil - stay order - order 41 rule 5 of code of civil procedure, 1908 - whether order passed by executing court valid where appellate court had stayed execution - court to whom stay order addressed is bound by it and prohibited from proceeding further as soon as it gets knowledge of order - knowledge could be obtained either by receiving order directly from appellate court or through parties to proceeding to proceedings or in any other way - held, act of executing court against stay order treated as illegal. - - 22 of 1972 are bad in law, 5. there is no doubt about the legal position......code till 16th of june, 1972. to enable him to approach the appellate court for appropriate stay orders. accordingly, the petitioner preferred a. s. no. 12 of 1972. to the district court. adilabad and obtained orders of stav in i. a. no. 465 of 1972 on 16th of june, 1972. since the stay was granted by the court of first instance only till 16th of june, 1972, the matter was posted before that court for execution. on that dav. expecting orders of stay from the appellate court, the bhainsa court adjourned the matter to 17-6-1972. that day however, no formal order was received from the appellate court, but the advocate for the petitioner filed an affidavit that the appellate court had granted stay. all the same, since no formal orders were received the court of first instance vacated.....
Judgment:
ORDER

Sambasiva Rao, J.

1. The question I have to answer in these two revision petitions is whether the executing Court is bound to undo the acts and orders it has done and Passed after the Appellate Court has stayed the execution.

2. The following circumstances are material for consideration of this question. In O. S. No. 49 of 1969 in the District Munsiff's Court, Bhainsa. there was a decree for possession passed against the present petitioner on his application, the trial Court stayed the execution of the decree under Order 41, Rule 5 (2) Civil Procedure Code till 16th of June, 1972. to enable him to approach the Appellate Court for appropriate stay orders. Accordingly, the petitioner preferred A. S. No. 12 of 1972. to the District Court. Adilabad and obtained orders of stav in I. A. No. 465 of 1972 on 16th of June, 1972. Since the stay was granted by the Court of first instance only till 16th of June, 1972, the matter was posted before that Court for execution. On that dav. expecting orders of stay from the appellate Court, the Bhainsa Court adjourned the matter to 17-6-1972. That day however, no formal order was received from the Appellate Court, but the Advocate for the petitioner filed an affidavit that the Appellate Court had granted stay. All the same, since no formal orders were received the Court of first instance vacated the stay on 17-6-1972. C. R. P. No. 1720 of 1972 is against this order vacating the stay.

3. On 18th of June. 1972, the present respondent-decree-holder in O. S. No. 49 of 1969 obtained possession of tha property and also withdrew the costs. She claims to have leased out the property to a third person on that day itself. The Court of first instance received a telegram from the Appellate Court at 6.00 p. m. on 19-6-1972 and formal general order on 21-6-1972 intimating it about the stay granted pn 16-6-1972. Thereupon the present petitioner filed on 26th of June, 1972, E. A. No. 22 of 1972 to restore possession from the respondent and to direct her to re-deposit the costs. These applications were opposed by the respondent saying that she had already given the land on lease on 18-6-1972 to a third party and it would cause grave inconvenience if possession was then disturbed. Accepting this contention, the Executing Court dismissed on 20th of July, 1972 E. A. No. 22 of 1972. C. R. P. No. 1719 of 1972 is againit this order.

4. Sri Subbarayudu contends that stay granted by a court takes effect from the time thy order is passed; in any case, it would certainly be enforceable from the time it was brought to the notice of the Executing Court that stay had been granted Since the Advocate through an affidavit brought the fact of the Appellate Court granting stay to the notice of the Executing Court on 17-6-1972, the proceedings taken thereafter by that court contrary to the stay are null and void and have no legal effect. So, its order to vacate the stay on 17-6-1972 and its dismissal of E. A. No. 22 of 1972 are bad in law,

5. There is no doubt about the legal position. In the case of a stay order by the Appellate Court, the court of first instance is bound to obey it as soon as it gets notice of the order. Knowledge of the order is necessary. This knowledge can be obtained either by receiving an order directly from the Appellate Court or through one of the parties to the proceeding supported by an affidavit or in any other way. I take support for the above observations from the decision of the Supreme Court in Mulrai v, Murti Raghunathji : [1967]3SCR84 cited before me by Sri B. V. Subbarayudu, learned counsel for the petitioner.

6. Sri Jagannadha Sastry (or the respondent, however, points out that in the present case the affidavit was not that of the party but only that of his advocate and he was not the Advocate who had appeared before the District Court and was present when that order was passed. So, no reliance can be placed on such an affidavit. The affidavit filed by the Advocate of the petitioner in the executing Court on 17-6-1972 stated that on the previous day at 6-30 P. M. the Advocate at Adilabad had spoken to him on telephone and informed him that stay had been granted in the case on 16-6-1972. On that day also, he had a talk with the Advocate at Adilabad and the information was confirmed. Since the telegraph line was out of order, it could not be communicated directly to the Court.

7. When an Advocate appearing for one of the parties files an affidavit on oath, it must be deemed to be an affidavit filed on behalf of the party. I do not think it would be lesser in sanctity than an affidavit sworn to by the party himself. Therefore, it must be held that when an Advocate filed the affidavit before the Court, the Court had knowledge of the order of stay that had been Passed by the Appellate Court.

8. Then the question is what is the effect of the orders passed by the Executing Court from that time onwards. Despite the fact that the Advocate filed an affidavit and thus the Court gained knowledge of the orders of stay passed by the Appellate Court, it vacated the stay it itself had granted on 30th of May, 1972. and then proceeded to direct possession to the decree-holder and withdrawal of costs. If the Executing Court proceeds, with execution despite its deur knowledge of the order of stay passed by the appel-late Court, all the proceedings taken after the knowledge of the order would be a nullity. Once again I am supported by the decision of the Supreme Court in : [1967]3SCR84 . This is what Wanchoo, J. (as he then was) speaking for the Court observed at p. 1389:--

'In the case of a stay order, as it is addressed to the Court and prohibits it from proceeding further, as soon as the court has knowledge of the order, it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity.'

9. I must therefore hold that the order vacating stay passed on 17-8-1972 after gaining knowledge of the Appellate Court's order of stay and the order dated 20th of July, 1972, dismissing E. A. 22 of 1972 are nullities. So, until the orders of stay passed by the Appellate Court remain, the position as per that order shall continue. E. A. 22/1972 is therefore ordered subject to the result of the stay orders that will be ultimately passed by the Appellate Court, viz., the District Court of Adilabad.

10. In the result, the two revision petitions are allowed. Since it is an error committed by the Court. I direct the parties to bear their own costs in the two Civil Revision Petitions.


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