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Madanlal Agarwal Vs. Smt. Kamlesh Nigam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 786 of 1972
Judge
Reported inAIR1975MP132
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 22, Rules 3 and 4 - Order 38, Rule 5 - Order 39, Rules 1 and 2 - Order 40, Rule 1 - Order 41, Rule 5
AppellantMadanlal Agarwal
RespondentSmt. Kamlesh Nigam
Appellant AdvocateR.K. Pandey, Adv.
Respondent AdvocateB.C. Verma, Adv.
DispositionRevision dismissed
Cases ReferredIn Chidambaram v. Subramanian
Excerpt:
- - of course, an application can as well be made in the appeal or the revision pending before the appellate or the revisional court......to consider thequestion whether during the pendency of a stay order passed by the high court in a civil revision, the trial court could pass an order of attachment before judgment under order 38, rule 5 of the code of civil procedure.2. the facts leading to the present reference are as follows. the respondent is the land-lady and the petitioner is her tenant. the respondent filed a suit for eviction and for recovery of arrears of rent, which is registered as civil suit no. 210-a of 1970. the trial judge passed an order, dated 16-2-1971, striking out the defence of the present petitioner on the ground mentioned in section 13 (2) read with section 13 (6) of the m. p. accommodation control act, 1961. against that order, the defendant filed a revision in this court, which was registered as.....
Judgment:

Tare, C.J.

1. This case was refer-red by a Single Bench to consider thequestion whether during the pendency of a stay order passed by the High Court in a Civil Revision, the trial Court could Pass an order of attachment before judgment under Order 38, Rule 5 of the Code of Civil Procedure.

2. The facts leading to the present reference are as follows. The respondent is the land-lady and the petitioner is her tenant. The respondent filed a suit for eviction and for recovery of arrears of rent, which is registered as Civil Suit No. 210-A of 1970. The trial Judge passed an order, dated 16-2-1971, striking out the defence of the present petitioner on the ground mentioned in Section 13 (2) read with Section 13 (6) of the M. P. Accommodation Control Act, 1961. Against that order, the defendant filed a revision in this Court, which was registered as Civil Revision No. 312 of 1971. This Court, by its order, dated 24-9-1971, allowed the revision and remanded the case to the trial Court for a fresh decision on the question of striking out the defence.

3. Thereafter, the trial Judge passed an order, dated 7-1-1972, in pursuance of the remand order and again ordered the defence to be struck out. Against that order, the defendant filed Civil Revision No. 49 of 1972. This Court passed an interim stay order, dated 21-1-1972, in the following words:

'Meanwhile, further proceedings in the trial Court shall be staved'. The said Revision was ultimately allowed by this Court by order, dated 19-4-1972. By the said order, this Court remanded the case for a fresh decision after giving the defendant an opportunity to have his say. In the meantime the tenant vacated the premises.

4. The respondent land-lady moved the trial Court for an order of attachment before judgment under Order 38. Rule 5 of the Code of Civil Procedure and the trial Judge passed an ex carte order on 2-3-l'972, which was subsequently confirmed by that Court on 5-4-1972 after notice to the defendant. That was during the pendency of Civil Revision No. 49 of 1972, which was ultimately allowed by this Court on 19-4-1972. Therefore, the question arises whether the trial Judge could pass an order of attachment before judgment during the subsistence of the stay order Passed by this Court on 21-1-1972 in Civil Revision No. 49 of 1972.

5. Usually, stay orders are passed by the appellate Court or by the revisional Court. In some kinds of stay orders, there is partial stay. Or, in some other types of stay orders, the stay is complete. But, it is to be noted that the stay may be regarding execution of decree or in respect of further proceedings in the trial Court. The stay order passedby this Court on 21-1-1972 was in respect of further trial of the suit. It is, therefore, necessary to ascertain as to what the phrase exactly implies. There can be no doubt that when further trial of the suit or further proceedings in the trial Court are stayed, the Court of original jurisdiction or the Court below, as the case may be, would have no jurisdiction to take any steps which would be in furtherance of the trial on merits. Can it be said that the trial Court loses all jurisdiction to take any collateral action which may, in a sense, be towards the progress of the suit, but which is not in furtherance of the trial of the suit on merits For instance, if the appellate or the revisional Court has passed a stay order, can it be said that the trial Court cannot, on a request made by the parties, refer the dispute to arbitration? In Chidambaram v. Subramanian, AIR 1953 Mad 492 a preliminary decree had been passed, against which an appeal had been filed in the High Court. The High Court had passed a stay order staving the massing of a final decree. During the pendency of the stay order, an application was made in the trial Court by both the parties to refer the dispute to arbitration. The Division Bench of the High Court laid down that merely because of the pendency of the stay order, the parties would not be debarred from moving the trial Court for referring the dispute to arbitration. In that case, there was an additional reason given by the Division Bench, namely, that a stay order being for the benefit of one of the parties, such benefit could be waived. Even apart from that, the basic reason, we think, was that the trial Court would not lose jurisdiction to deal with collateral matters which would not be towards further trial of the suit on merits, but which would only be collateral or incidental to the suit being kept alive. We may illustrate the said point as under.

6. For instance, if an appeal or a revision is pending in the appellate or the revisional Court and if one of the parties dies in the meantime and if the appellate or the revisional Court happens to pass a stay order, that would not oust the jurisdiction of the trial Court to entertain an application for substitution of legal representatives under Order 22, Rule 3 or Rule 4 of the Code of Civil Procedure. Of course, an application can as well be made in the appeal or the revision pending before the appellate or the revisional Court. Similarly, we do not see any reason why proceedings under Order 39, Rules 1 or 2 or Order 40. Rule 1 of the Code of Civil Procedure cannot be taken in the trial Court during the pen-pency of a stav order passed by the appellate or the revisional Court. The pro-ceeding relating to grant of injunction or appointment of a receiver may be proceeding in the suit, but this would not be a proceeding in further trial of the suit on merits. Suppose, if a party is trying to damage the property, we do not see any reason why the party aggrieved cannot approach the trial Court for appointment of a receiver or for an injunction. Similarly, if one of the parties tries to take steps which would ultimately result in defeating the decree that might be passed, we do not see any reason why the party aggrieved cannot be allowed to approach the trial Judge for an order of attachment before judgment under Order 38, Rule 5 of the Code of Civil Procedure, which, although may be a proceeding in the suit, will not be in furtherance of the trial of the suit on merits, but it would only be a protective step so as to ensure that the defendant may not be able to defeat any ultimate decree that might be passed in the suit. Looked at from this point of view, we are of the opinion that during the pendency of a stay order passed by the appellate or the revisional Court, although, the trial Court or the Court below may not have any jurisdiction to proceed with the trial of the suit on merits, it can certainly take such other steps which are collateral or which may be protective or which would be for the purpose of keeping the lis alive and all such steps, in our opinion, such as any application under Order 22, Rule 3 or Rule 4 of the Code of Civil Procedure or an application under Order 39. Rule 1 or Rule 2 or an application under Order 40. Rule 1 or an application under Order 38, Rule 5, would be maintainable in the trial Court in spite of such stay order.

7. The present petitioner had filed an application, registered as Interlocutory Application No. 12, purporting to be under Section 151 of the Code of Civil Procedure, wherein, he had prayed that the order of attachment before -judgment, passed by the trial Court be withdrawn and a report be made to the High Court for punishing the respondent for committing contempt of Court. That application was rejected by the trial Judge by order, dated 9-8-1972, which is the subject-matter of the present revision. In the view that we take, we do not think that the trial Judge acted in excess of jurisdiction by passing the order of attachment before judgment on 2-3-1972 during the pendency of the stay order passed by this Court in Civil Revision No. 49 of 1972, and for the same reason, the respondent cannot be said to have committed any contempt of Court by having secured the order of attachment before Judgment from the trial Court. Consequently, this revision fails and isaccordingly dismissed with costs. Counsel's fee in this Court shall be Rs. 30/-.


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