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Lala Parshottam Saran Vs. Lala Hargoolal and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All214; 60Ind.Cas.131
AppellantLala Parshottam Saran
RespondentLala Hargoolal and anr.
Cases ReferredBalkislen Sahu v. Khugnu
Excerpt:
.....to render the act invalid. we agree that chapter i, rule 3 of our own high court rules enables a vacation judge to exercise the appellate jurisdiction vested in the court in any matter non nested with or arising out of the execution of a decree which he considers urgent, and that that would clearly authorise him to grant a stay of execution of a decree in respect of which an appeal was pending in the appellate court. the matter has been strongly argued on behalf of the appellant on the terms of clause (1) of rule 5, and if clause (1) stood alone, there would be a good deal to be said for the contention, but the provisions in clause (2) which empowers the curt which passed the decree to grant a stay sufficient cause being shown during the time provided by law for presenting an appeal,..........dealt with the matter in his judgment. both the respondents, the decree-holder and the auction purchaser, must have their costs of this appeal on the higher sale.
Judgment:

1. This appeal, which arises out of two applications made to the execution Court, raises several questions. We propose to deal only, so far as the decision of the case goes, with one point of law, which in our view is fatal to the appeal. Two application mere made to the Court below on the 27th of October 1919 to set aside a s Is, or, in other word, to declare that a sale which had been only held provisionally had become void in the events which had happened. There is a differently about the application under Order XXI, Rule 90. It is clear that his reason why two applications were made was that a difficulty was felt by the applicant and it was desirable to have an alternative or second string to his bow. The application under Order XXI, Rule 90, i.e., the application 1120, breaks down by reason of the fact that no irregularity in publishing or conducting the sale was alleged or proved and no attempt was made to prove any loss resulting there from and it is plain law and covered by authority, namely, Shirin Begam v. Agha Ali Khan 18 A. 141 : A.W.N. (1896) 9 : 8 Ind. Dec. (N. S.) 800 that it is necessary for be applicant to make that position good. The other application, which is the substantial one and which has formed the subject of argument before up, we have treated as an application under Section 47 arising out of the execution of the decree, being in sub trace an application to declare the sale void and of no effect. For the purpose of the point of law to be decided, it is not necessary to set out the whole of the history of this master. It is sufficient to say that the ,applicant, Lal Purshotam Saran, purchased the interest of the judgment-debtor in the property in question subject to a heavy liability under a mortgage-decree which had been obtained by Hargoolal, the decree-holder, in 1919, and in January 1919 the decree-holder made an application for sale. After considerable delay objections were taken by the judgment-debtor or his successor and were heard and disposed of on or about the 12th of September und an application was made by Parshotam Saran ex parte to this High Court, which forms the subject of our decision. At that time there no appeal had been filed against the order dismissing the objection. Indeed, there could be none, because the High Court was closed except for vacation business and it was, therefore, necessary that application should be made to the vacation Judge. The vacation Judge was informed by affidavit that no appeal Lad been filed and that it was proposed to file an appeal at the earliest possible moment, namely, at the commencement of the next sittings of the Court, In view of the fact that security had been filed by the applicant, the vacation Judge entertained the application and granted a stay of the sale. The sale had been fixed for the next day and it was not possible for the order of the High Court to reach the Court below in time to stop the sale. Arrangements were made by which the Court, below was informed by telegram of the order which the High Court had made that day. The Court being in a obvious difficulty made, what turns out to have beer, a very sensible order. Having no order of the High Court before it. It refused to stop the sale, but made an order that if it should turn out that the sale had been properly stayed by the High Court, it would have to be cancelled. In the face of an order like that both parties, of course, would proceed with the sale at their own risk; that is to say, the decree-holder and the purchaser might say to themselves, this is not good enough, and consent to the sale being cancelled and a fresh date fixed. On the other hand, the judgment-debtor might, if the sale took place and he had reason to complain of its results, apply to the Court to make some order confirming that which it had provisionally made, namely, that the sale should be void. On the 27th of October an application was made ex parte to the Subordinate Judge asking for such an order to be paused, namely, the tile be declared void, and the learned Judge appears to have made an order to that effect, but at the instance of the other party, also esc parte, subsequently cancelled. It is not necessary to dead with the legal effect of this particular proceeding, but it is desirable to point out to the learned Judge that whether he was function or not, and could cancel the order which he had made on the 27th pf October, if be made up his mind to do so, the proper way to do so would be by writing or dictating a fresh order stating that his previous order was cancelled and giving the reasons for such cancellation. The practice of scratching out or attempting to obliterate a previous order already passed by him in his judicial capacity, is conduct which no Judge ought, under any circumstance whatever, to permit himself to do. It is obviously in the highest degree inconvenient and might, under certain circumstance', be much worse than inconvenient, and we do not hesitate to direct the learned Judge to take notice of this observation and on no account to permit himself to do anything of that kind with an order of the Court again. Passing from that, the next important step was that an appeal, towards the end of October, was filed in the High Court, when the High Court was open for the purpose. The auction-purchaser was not made a party to that appeal and he was compelled to apply to the High Court to be made a party. An order to that, effect was made. The hearing of the appeal was expedited and on the 19th of December 1919 the appeal was dismissed on the merits and the order of step granted by the vacation Judge on the 19th of September was discharged. We may here, in passing, observe that the learned Judge of the Court below baa taken an erroneous view of the effect of a discharge of this kind. Assuming the stay order to have been properly obtained and granted within the jurisdiction of the Court, it is good as far as it goes and as long as it lasts, until it is discharged; and a proper order duly made according to law, if it is subsequently discharged for good reasons, cannot be treated as of no effect. Great point was made by the respondents before us, and properly made, of the terms in which that appeal was dismissed. The Bench of two Judges who heard that appeal, formed the opinion that the appeal and, therefore, necessarily, the application made for a stay in connection with the appeal, was a mere attempt by Parsotam Saran to delay the tale and to obstruct the execution of the decree without good cause; and it has been urged before us that, that being so, the order in trited ex parte on the 19th of September from the vacation Judge, must be taken to have been obtained viala We and that the result of that is that the present applicant cannot set up that order in his own favour for the purpose of having the sale invalidated. We agree that if that is made out, the result contended for by the respondents would necessarily follow. An applicant to any Court for an order in his own favour ex parte, if he action with want of bona fides, cannot subsequently sec up an order so obtained in. his own favour, and if we were in a position to decide that point finally to-day, it would be a complete answer to the application of Parshotam Siran. It is, however, true, as pointed out by the applicants Counsel, that in making the application he filed security which was afterwards found sufficient. We, therefore, come to no conclusion upon this question of fact. We are left with the question whether the order staying the sale, of the 19th of September, was a good order or a bad one. If it was a good order there was no sale. If it was a bad order there was nothing to render the act invalid. The question whether it was a good order or a bad one depends upon the question whether the vacation Judge had power to make up an order, no appeal being, at that time, before the Appellate Court. We agree that Chapter I, Rule 3 of our own High Court Rules enables a vacation Judge to exercise the appellate jurisdiction vested in the Court in any matter non nested with or arising out of the execution of a decree which he considers urgent, and that that would clearly authorise him to grant a stay of execution of a decree in respect of which an appeal was pending in the Appellate Court. Whether it would enable him to admit an appeal for the purpose of granting a stay is another question upon which we give no opinion and which will have to be decided when the matter arises. The vacation Judge on this occasion vas not asked to admit any appeal. No appeal was preferred before him. No order was made accelerating the admission of the appeal. All that happened was an undertaking on affidavit that an appeal would be filed at the commencement of the next sittings of the High Court. In our view, the interpretation to be put upon Order XLI, Rule 5 which is the material provision in the Code of Civil Procedure in this matter, is that an Appellate Court has no jurisdiction to grant a stay of execution in a matter of which it is not already seized in appeal. The matter has been strongly argued on behalf of the appellant on the terms of Clause (1) of Rule 5, and if Clause (1) stood alone, there would be a good deal to be said for the contention, but the provisions in Clause (2) which empowers the Curt which passed the decree to grant a stay sufficient cause being shown during the time provided by law for presenting an appeal, make it quite clear that that Court and that Court alone has jurisdiction during the period before the appeal was presented, and we think that this is the proper interpretation of Rule 5 as a whole. We are confirmed in this view by such authority as appears to exist upon the subject. In an unnamed ruling reported as Weekly Reporter, Miscellaneous Rulings, Volume V, page 15 Bhugwan chunder Chose, In re 6 W.R. Mis. Rul. 15 a Court of two Judges held that the High Court could not under a provision of the law corresponding to the present Order XLI, Rule 6, direct a lower Court to take security 'In execution of a decree when no appeal had been preferred to the Appellate Court against such decree. In 1901 a two Judge Bensh in Calcutta, reported in the case of Bhagwat Baikoer v. Skeo colam Sihu 31 C. 1081 : 9 C.W.N. 123 took the view that it is the Court which has seisin of the appeal which is competent to stay the carrying out of the order appealed against pending the hearing of the appeal, and that it was not competent to an Appellate Court to stay proceedings in the execution of a decree of a Subordinate Court merely because an appeal had been preferred against an order of the lower Court refusing to set aside the decree. In that case there was no appeal pending to the Appellate Court against the decree itself. By implication a strong Bench of five Judges in Calcutta took the same view in the case of Balkislen Sahu v. Khugnu 31 C. 722 (F.B.) : 8 C.W.N. 572 That Court held that the Court which has seisin of the appeal can make an order staying proceedings pending the hearing. It is plain from the refering order which caused that Bench to be Constituted that they took the view that Such an order could not be made unless the, Court had seisin of the appeal. We, therefore, some Co the conclusion that the order In this case which Parshotam Saran obtained in his own favour, was made without jurisdiction and could have no legal, effect in nullifying the sale which took plane on the 20th of September. It is, perhaps, supercilious to point out that ex parte orders are always obtained at the risk of the party applying for them. By reason of the fast that it is impossible for the Court dealing with such applications to take a complete view of the whole master, that there is nobody on the other side to point out difficulties or objections, and that the tribunal is bound more or less to follow the lead of the person making the application it necessarily fellows that it is impossible for the applicant, if be makes a mistake, either of omission or commission, so that it afterwards turns out that the order which he has obtained, is an imperfect one, to correct such mistake and have it put right in the same way in which orders may be amended or correct when they have been passed in the presence of the parties and the mistake is a common one to both sides. On this ground alone the appeal fails and the application was rightly dismissed, though, as appears by what we have said, not upon the grounds upon which the learned Judge dealt with the matter in his judgment. Both the respondents, the decree-holder and the auction purchaser, must have their costs of this appeal on the higher sale.


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