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(Sahu) Nand Kishore Vs. Shadi Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1926All457
Appellant(Sahu) Nand Kishore
RespondentShadi Ram and ors.
Excerpt:
.....am of opinion that, if it be found that the continuation of the execution proceedings was in excess of the powers of the trial court, we have clearly a case for the exercise of the inherent powers of the court. 17. that is no doubt a good reason for holding the trial court blameless, but does not appear to bear on the question of jurisdiction. arunachellam air 1914 mad 261 that there is no reason why the operation of an order of this court is to be made contingent, say, upon the due performance of the duties of the post office, 19. to that it might well be replied that the post office is in such a case the instrument of communication selected by the court......the power of the subordinate court to carry on further execution proceedings.5. an order to stay passed by an appellate court is an order to a subordinate court to stay its hand, and in that sense it bears no analogy to an injunction, which is an order to a party to refrain from doing a certain act. the former takes effect from the time of its pronouncement, and its communication is only needed to make it known to the court which is directed to carry it out. its force is not suspended till it is formally communicated to the court concerned. an injunction is, however, binding on the party to whom it is issued from the time it is communicated, for there can be no attempt unless the party concerned knows what he is required to do, or to abstain from doing, and a court cannot punish a.....
Judgment:

Kanhaiya Lal, J.

1. This is an appeal by the judgment-debtor from an order refusing to set aside a sale, held in execution of a decree, and the questions for consideration are, whether the sale officer had any jurisdiction to proceed with the sale after an order for stay had been passed by this Court in an appeal pending from the decree, then under execution, and whether there had been any material irregularity in publishing or conducting the sale and had any material injury resulted therefrom.

2. In execution of a certain decree, from which an appeal is pending in this Court, the villages of Miranpur and Shekhupur Chuhar were directed to be sold; and the sale officer had fixed the 20th June 1923 for their sale by auction at Bijnor. On the 18th June 1923 an order for stay was passed by this Court; and a copy of it was sent by post to the Subordinate Judge of Bijnor, sitting at Moradabad. The Subordinate Judge at his office is stated to have received that order on the 20th June 1923 at 1 p.m; and a telegram was immediately sent to the sale officer at Bijnor to postpone the sale in pursuance of that order. But before the telegram could reach the sale officer, the sale had been completed and one of the villages described by the decree-holder as worth Rs. 20,000 in execution proceeding was purchased by the decree-holder himself for Rs. 25,500, and the other, similarly described by the decree-holder as worth Rs. 8000, was purchased by certain other parsons for Rs. 13,400.

3. The allegation of the judgment-debtors was that the sale was irregular and illegal inasmuch as no proclamation of sale had been actually affixed in the villages in question, and the properties were sold in spite of the order for stay issued by this Court; and it was further alleged that material injury had resulted to the judgment-debtor in consequence. The Court below found that there was no material irregularity in conducting or publishing the sale, that the sale was held in ignorance of the order for say, and that no material injury had in any case been caused to the judgment-debtor.

4. A Court has jurisdiction to proceed with the sale of the property directed to be sold so long as no order for stay of the same has been passed by a superior Court having jurisdiction to suspend the execution proceeding. Order 41, Rule 5, of the Code of Civil Procedure provides that an appeal shall not operate as stay of a proceeding under a decree or order appealed from, except so far as the appellate Court may order otherwise. Is also empowers an appellate Court to pass an ex parte order for stay of execution pending the hearing of the application. In Hukum Chand Boid v. Kamalanand Singh (1906) 83 Cal 927 it was held that where an appellate Court had made an unconditional order for the stay of execution, the operation of the order was not postponed until it was communicated to the subordinate Court or the party intended to be affected by it. The order becomes operative under Order 41, Rule 5, the moment it is made and suspends the power of the Subordinate Court to carry on further execution proceedings.

5. An order to stay passed by an appellate Court is an order to a Subordinate Court to stay its hand, and in that sense it bears no analogy to an injunction, which is an order to a party to refrain from doing a certain act. The former takes effect from the time of its pronouncement, and its communication is only needed to make it known to the Court which is directed to carry it out. Its force is not suspended till it is formally communicated to the Court concerned. An injunction is, however, binding on the party to whom it is issued from the time it is communicated, for there can be no attempt unless the party concerned knows what he is required to do, or to abstain from doing, and a Court cannot punish a man for doing what he did not know he was forbidden to do.

6 No such consideration arises, where the jurisdiction of a Court to proceed with an execution proceeding is suspended by an order passed by an appellate Court to stay that proceeding, and the operation of such an order cannot be deemed to be contingent upon the due performance of its duties by the office of the appellate Court, or that of the Court before which the execution proceeding is pending or upon the timely performance by the post office of its duties in the matter. When the appellate Court has said that the execution of a decree is not to take place from that moment the Court subordinate to it has to stay its hand. If the order does not reach in time, it cannot be charged with disobedience of that order but the jurisdiction of that Court to proceed with the execution is all the same suspended, and any act done by it to the prejudice of the party, at whose instance the stay was granted in ignorance of that order must, if so required, be discharged.

7. In Satinath Sikdar v. Ratanmani Naskar (1912) 15C LJ 335 an order passed by a subordinate Court determining the amount of the mesne profits to which a party was entitled after an order for stay was passed on appeal, was similarly held to be without jurisdiction. In Ramanathant Chetty v. Arunachellam Chetty AIR 1914 Mad 261 it was held that an order of an appellate Court staying further proceeding in the lower Court took effect from the time it was pronounced and not from the time it was officially communicated to the lower Court, and that a sale held contrary to such an order, whether with or without the knowledge of it, was liable to be set aside as having been held without jurisdiction. In fact a sale held under such circumstances, is so gravely irregular that to use the words of their Lordship of the Privy Council in Malkarjun v. Narhari (1901) 25 Bom 337, it is sufficient by itself to entitle the judgment-debtor to vacate the sale.

8. If an execution is proceeded with after an order for the stay therefor has been passed by the Court before which the execution proceeding is pending, or by a higher Court in the exercise of its appellate authority, it can be quashed on the motion of the party prejudiced by if. But as pointed out by Freeman it may happen that for want of such motion the execution may never be arrested and property seized may be sold. But where there is such a motion, the writ of execution has to be discharged, for a prohibition emanating from a Court against the execution of the writ operates from the time of the completion of those acts, which are requisite to call the prohibition into existence (Freeman on Execution Articles 32 and 33.)

9. There may, however, be orders, the operation of which may be dependent upon their being communicated to the Court concerned for their execution there may be other orders, the operation of which may commence at once, and mere delay in communicating them would not prevent the parties affected by them in demanding that the status quoante should be restored. As stated by Lord Chancellor Westbury in In re Risca Coal and Iron Co. (1862) 31 LJCh 429 convenience that lies in certainty can be attained only by the date of the order, and great laxity of practice may be introduced and encouraged by a departure from that date. In Maya Singh v. Jhau Lal (1872) 4 NWP HCR 135 and Mian Jan v. Man Singh (1878-80) 2 All 286 sale held in ignorance of orders for their stay were set aside, and in Sant Lal v. Mt. Umrao-un-nissa (1890) 12 All 96 it was similarly held that the effect of an order passed by a Court for the postponement of a sale was to deprive the officer of all legal authority to hold it on the date previously fixed, and the fact that the latter was not aware of the order was not material.

10. On behalf of the auction-purchasers reliance is placed on the decisions in Muthukumarasami v. Kuppusami (1910) 33 Mad 74 and Venkatachalapati v. Kameswaramma AIR 1918 Mad 391. But the grounds on which those cases proceed seam hardly convincing. It is obvious that despite the filing of an appeal the Court which passed the decree or order appealed from has power to execute it; but the power is not absolute. It can be suspended if the appellate Court; so orders; and the order for stay so passed does not remain in suspense till it is communicated; for the delay may defeat its object. The delay may in some cases influence the party concerned to waive the benefit of that order in respect of any act done before it was communicated, or lead the Court which passed the order to vary it with retrospective effect; but no such thing has happened in this case. In Ponnuswami v. Ganpatti AIR 1924 Mad 393 an order for the stay of a criminal proceeding was held to be binding, though a notice of the order was received otherwise than by an official communication. In the Ganges Flour Mill Co., Ltd. v. Shadi Ram (1918) 16 ALJ 46 an ex parte order for stay of an auction sale, which was obtained by fraud, was discharged by the Judge who had passed it, and it was held that in those circumstances the sale held in contravention of the order before it was discharged was not necessarily void. But no question of fraud arises in this case. The sale of the properties in question therefore cannot be upheld.

11. It is argued however on behalf of the auction-purchasers that an objection of that nature cannot be maintained under Order 21, Rule 90, Civil P.O., and that Section 47, Civil P. C, has no application to the case, even as against the decree-holder who has purchased one of the properties An auction-purchaser is however a representative of the judgment-debtor so far as he purchases the rights of the mortgagor as they existed on the data of the mortgage, and he is also a representative of the mortgagee so far as the rights or equities, which the mortgagee was entitled to enforce against the mortgagor, are concerned. A question arising out of an execution proceeding relating to the legality of the sale between the judgment-debtor on the one hand, and the decree holder or the auction-purchaser on the other, is a question relating to the execution, satisfaction, or discharge of a decree, and as held in Sita Ram v. Janki Ram AIR 1923 All 200, Bindeshri v. Badal Singh AIR 1923 All 394 and Veyindramuthu Pillai v. Maya Nadan AIR 1920 Mad 321 a judgment-debtor is entitled to have any question, relating to the execution, discharge, or satisfaction of a decree under execution, decided under Section 47, Civil P.C., as much against the decree-holder as against an auction-purchaser of the property, who is regarded as a representative of the decree-holder for the purpose of enquiring into that question. (The judgment then dealt with the question of material irregularity and concluded that the judgment-debtor clearly suffered material injury in consequence of the aforesaid irregularities in publishing and conducting the sale of the villages in question). The appeal is therefore allowed and the auction-sales of the villages in question are sat aside. As the decree-holder does not appear to have been in any way responsible for these irregularities or to have had any notice that a stay of the sale had been ordered, the parties must pay their own costs of this proceeding both here and in the Court below.

Boys, J.

12. I agree. The case raises a question of considerable importance. I need not repeat the facts which have been fully set out by my learned brother. The application is one to set aside the sale on two main grounds: firstly, that the continuation of the execution proceedings, as a result of which the sales were carried out, was wholly without jurisdiction after the High Court had passed an order staying the proceedings though that order had not been communicated to the sale officer at the time the sales were held; and secondly, that there was material irregularity and consequent substantial injury within the meaning of Order 21, Rule 90.

13. As to the first objection that the continuation of the execution proceedings was wholly without jurisdiction, it is conceded by the applicant that P. 21, Rule 90 has no application, but he relies on Section 47. Even if Section 47 be inapplicable, as is contended for the respondent, I am of opinion that, if it be found that the continuation of the execution proceedings was in excess of the powers of the trial Court, we have clearly a case for the exercise of the inherent powers of the Court.

14. The question whether the sales must be set aside on the ground that an order of stay had been passed though it was not yet communicated, is not free from difficulty and I will indicate briefly the reasons which have led me to the conclusion that the sales must be set aside.

15. I do not find myself carried for word by the arguments to be found in Venkatachalapati Rao v. Kameswaramma AIR 1918 Mad 391. It does not appear to me that the fact that Order 41, Rule 5 provides that the mere filing of an appeal does not operate as a stay has much hearing on the question under consideration: for in the mere filing of an appeal there is in many cases practically nothing more than the act of the litigant; any act of the Court is a mere formality. So far the rule only makes clear that the mere act of the litigant shall not operate as a stay and the Court of first instance still retains jurisdiction to proceed. This fact however can in my view have little bearing on the question whether, when a superior Court has itself taken action by availing itself of its power to order a stay (of. the later words in Rule 5 'except so far as the appellate Court may order') that order operates immediately or only after communication.

16. Again in the order of reference at p. 140 one of the learned Judges adduced the further argument that

it is difficult to see how the trial Court, if a proper application is made to it, could refuse the application until the order of the appellate Court granting stay of execution has been communicated to it.

17. That is no doubt a good reason for holding the trial Court blameless, but does not appear to bear on the question of jurisdiction. It is however an argument founded on expediency and to that extent can carry weight.

18. Nor, on the other hand, I am strongly impressed by the argument relied on for the appellant and to be found in Hukum Chand v. Kamalanand (1906) 83 Cal 927 and Ramanathan v. Arunachellam AIR 1914 Mad 261 that there is no reason why the operation of an order of this Court is to be made contingent, say, upon the due performance of the duties of the Post Office,

19. To that it might well be replied that the Post Office is in such a case the instrument of communication selected by the Court.

20. The question is certainly not free from difficulty. In holding that the sales must be set aside I am influenced principally by three considerations.

21. Regarding the purely legal aspect I find myself in agreement with Straight and Tyrell, JJ., where in Sant Lal v. Umiao-un-nissa (1890) 12 All 96 they say:

the sale was an illegal sale just as much as if a Court tried a cause in respect of a subject-matter, which, before the date of a trial, had been removed from its jurisdiction by an authority having power to deprive it of such jurisdiction.

22. I do not overlook the fact that in that case there was a question of an order of the trial Court itself; but the distinction appears immaterial; for where the order has been passed by a superior Court that Court has also derived from the Legislature its authority to deprive the trial Court of its normal power to proceed.

23. From the point of view of expediency I am influenced by two considerations, firstly, 'the convenienience that lies in certainty' emphasized by my learned brother; secondly, the fact that in very many of these cases, though it does not appear to be so in this particular case, the knowledge or at least rumour, that an order for stay has been passed may be expected to reach the sale locality very quickly unofficially and to affect the price obtained: of. Nonidh v. Mt. Sohan (1872) 4 NWP HCR 135.

24. I would, therefore, for the reasons given by my learned brother accept the first contention of the appellant that the continuance of the execution proceedings was, though unknown to the trial Court, so to be, through no fault of its own, in excess of its powers.

25. I agree farther in the findings arrived at by my learned brother on the second contention of the appellant.


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