1. This application for leave to appeal to Supreme Court has been filed by defendant No. 1 against the confirming judgment and decree dated 7-11-1949 of Sri P.C. Dey, Subordinate Judge of Sambalpur. The suit is for recovery of possession of sir lands attached to the Thikadari tenure of which defendant No. 3 was the ex-Thikadar and defendant No. 2 Lal Sadananda Singh is the Zamindar. Plaintiff No. 1 is the son of ex-Thikadar Raghu Bariha (defendant No. 3) and plaintiff No. 2 is the uncle of plaintiff No. 1 belonging to the junior branch of the family which had a common ancestor.
The Zamindar (defendant No. 2) filed O. S. No. 16/33 in the Munsif's Court against defendant No. 3 alone for realisation of arrears of rent or Rs. 375/- and odd and for ejectment of defendant No. 3. The suit was decreed on 5-6-33. Defendant No. 3 was directed to pay up the decretal dues within three months, failing which he was to be evicted. The present defendant No. 2 having taken delivery of possession of the suit lands in execution of that decree, and defendant No. 1, the appellant, having taken lease of these lands from defendant No. 2 and having entered upon the disputed lands, the present suit was brought mainly on the allegation that the previous decree was a personal decree against defendant No. 3 and the plaintiffs not having been represented in the previous decree, their interest in the suit lands, which are ancestral properties, is not affected. The plaintiffs, therefore, prayed for recovery of possession of the suit lands. The plaintiffs' further contention was that the Thikadar was not liable to be ejected solely on the ground of non-payment of rent.
2. The trial Court granted relief in favour of the plaintiffs mainly on the ground that the previous decree was merely a personal decree against the ex-Thikadar (defendant No. 3) and it did not bind the interest of the present plaintiffs. It was found that the Thikadari interest along with the disputed sir lands were the ancestral properties of the parties. In appeal, the High Court confirmed the finding of the trial Court that the previous decree against defendant No. 3 was a mere personal decree and further that the properties in dispute are the ancestral properties and, as such, the interests of the plaintiffs were not affected by the previous decree.
3. It is not disputed before us that the previous decree was a personal decree wherein the present plaintiffs were not represented at all. Furthermore, it is not disputed that the properties along with the Thikadari interest are the ancestral properties of the parties. This being the position, the case is fully covered by the decision of this Court in the case of -- 'Tirtha Naik v. Sadananda', AIR 1952 Orissa 99 (A).
Some of the principles laid down in that case, after a review of the entire case law on the subject are that the Thikadari leases, either permanent or temporary but renewed or renewable from time to time, are, like any other property, capable of being possessed by a coparcenary; and that the joint family estate in such (Thikadary) leases can grow either if they are acquired with the joint family funds, or with joint family labour or is allowed to be treated as joint family property by the acquirer. When the manifest position in the case is that the disputed properties are ancestral and the other members of the family had interest, the same cannot be extinguished by execution of a mere personal decree against the ex-Thikadar. We are, therefore, of the opinion that it is not a fit case where leave can be granted nor is it a case where any substantial question of law is involved.
4. Mr. B. N. Das, appearing for the appellant, contends, relying upon the affidavit filed on behalf of the appellant, that the suit properties will be valued at more than ten thousand rupees. Even if the valuation of the properties be more than ten thousand rupees, leave cannot be granted unless there is any substantial question of law involved, as the judgment of the High Court is one confirming the judgment and decree of the trial Court. We have found that the case does not involve any substantial question of law.
But that apart, it is clear that the appellant will not be allowed to take up the position that the suit properties are valued at more than ten thousand rupees in the face of the fact that he, being the appellant before the High Court, had valued the properties in suit at Rs. 3000/-. The principle is well established that a party cannot approbate and reprobate for the purpose of filing an appeal to the Supreme Court when he had taken advantage of the position by putting a much lower value of the properties in dispute in the lower appellate Court. It is to be noted here that the court-fees payable in the lower Court were on the marked value of the subject matter of the suit. We may here refer to a decision of Rankin C.J. in Division Bench of the Calcutta High Court reported in -- 'Mahendra Narayan v. Jankinath', AIR 1931 Cal 417 (B). The same view was also taken in the Bombay High Court reported in -- 'Anant Narayan v. Ramchandra Gangadhar', AIR 1918 Bom 224 (C).
5. On a consideration of these points, therefore, we refuse to grant leave and the application is, therefore, dismissed with costs, which are assessed at Rs. 50/- (rupees fifty).
6. But a further point of importance arises to be decided in connection with the prayer of the appellant for staying execution of the decree in the meantime and allowing the appellant to move the Supreme Court for special leave and obtain a stay order. The question is, after rejecting the prayer for leave, whether we have any jurisdiction to grant such a prayer for stay of execution of the decree and further if the present case is a fit one wherein we should exercise our jurisdiction. The provision of stay of execution of decree, appealed from, in such cases, is contained in Order XLV, Rule 13, Civil Procedure Code, which runs as follows :
'Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.'
The language is manifestly clear to indicate that special provision is made for granting stay of execution of the decree only after the grant of certificate. Mr. Das, realising that the present case is ' not covered by the provisions of Order XLV, Rule 13, falls back upon Section 151, Civil Procedure Code, to invoke our jurisdiction to prevent abuse of the process of Court and stay execution in the interest of justice.
He particularly relies upon a decision of Mukherjea J. reported in -- 'Nund Kishore v. Ramgolam', 40 Cal 955 (D) wherein in similar circumstances stay of execution was allowed in exercise of the inherent- power of the High Court. In that case the petitioners were defendants in a mortgage suit which was dismissed by the trial Court; but the decree was reversed and the mortgage decree was passed by the High Court. The defendants applied to the High Court for leave to apply to His Majesty in Council; the application was refused; thereafter the defendants made an application for stay of execution of the decree which was made final by the Court in India during the pendency of the application. After the rejection of the leave by the High Court the petitioners filed an affidavit that they had taken steps to apply to the Judicial Committee for special leave and invoked the inherent powers of the Court to stay execution. The High Court stayed the execution proceedings relying upon the principle 'ex debito justitiae', to do that real and substantial justice for the administration of which alone the Court exists. Mukherjea J. was mainly impressed with the circumstances appearing that
'an application to the Judicial Committee for special leave to appeal to His Majesty in Council, must necessarily take time; distance cannot be annihilated, and time must be occupied, in spite of utmost expedition, in the preparation and transmission of papers. Besides their Lordships of the Judicial Committee do not hold their sittings continuously throughout the year and weeks may elapse before the most diligent of suitors is able to obtain special leave to appeal to His Majesty in Council.'
It is significant to note that these circumstances have now disappeared. We will note here that Holmood J. was a party to the judgment. Even though he did not differ from his learned brother in allowing stay, he did not agree with the reasons contained in the judgment of Mukherjea J. He strongly expressed himself in the words :
'To my mind, the use of the inherent power in this case would be an abuse of the process of the Court ...... I am strongly averse to staying execution, where the law does not expressly authorise it, except on very good grounds shown to the satisfaction of the Court.'
It is clear that in such a case there is no question to right a wrong or to prevent the abuse of process of Court; the decree has been passed by the High Court and we have got to take the decree as a valid and good decree until it is set aside. The decree-holder manifestly has got the right to execute the decree unless he is prohibited by law to execute or unless the Courts are empowered by express provision of law to restrain the decree-holder from executing the decree in certain events. The very language of Order XLV, Rule 13 is emphatic on the point that such a decree having been passed by the High Court is to be executed 'unconditionally', unless the Court directs otherwise even after the granting of the certificate. We are inclined to agree with the view expressed by Holmood J. that in such a case where the law does not expressly authorise to restrain the decree-holder from executing the decree, to prevent the decree-holder from executing the decree by using the inherent power of the Court would ordinarily be an abuse of the process of Court.
7. We shall next refer to the case reported in -- 'Sailendra Nath v. Saroj Kumar', AIR 1934 Cal 823 (E). In that case, a petition for stay of further proceedings was distinguished from that of stay of execution of the decree. Their Lordships opined that even though such a case did not come within the language of Order XLV, Rule 13, the High Court might exercise its inherent powers in staying further proceedings. Their Lordships merely observed, without any discussion of the matter, that it was now well settled that apart from the aforesaid provision, that is, Order XLV, Rule 13, there was abundant inherent power in the Court to stay such proceedings in a suitable case. On the merits, however, their Lordships refused to allow stay. It does not appear from the case whether the petition for stay of further proceedings was presented after the refusal of the prayer for leave to appeal or after granting the same. That is an important point of distinction.
8. The next decision that has been brought to our notice is also of the same High Court reported in -- 'Jewan Ram Gangaram & Co. v. Commrs. for Port of Calcutta', AIR 1939 Cal 308 (F). The applicants before their Lordships were defendants in the suit which was decreed, one of the terms of the decree being that the applicants were ordered to remove certain buildings and structures on the land in suit within three months from the date of the decree. Against that decree, the applicants preferred an appeal to the High Court and the appeal was pending. The applicant's petition for stay of execution of the decree appealed against to the High Court having been refused, the applicants applied for a certificate for leave to appeal to His Majesty in Council against the order refusing to stay execution.
It is to be noted that the appeal itself was pending, it was stated before their Lordships in the petition for stay that the applicants had taken steps to file an application for leave to appeal and for stay of execution of the said decree to His Majesty in Council. As it was physically impossible for the applicants to file an application for special leave before a considerable length of time, they moved for stay to enable them to approach their Lordships of the Privy Council for obtaining such an order for stay. Their Lordships observed, relying upon the decision that we have already referred to above, that is 40 Cal 955 (D), that it was open to the High Court to exercise its power under Section 151 and stay execution of the decree although the matter may not strictly come within the terms of Order XLV, Rule 13.
Here the point of distinction, of course, is that the appeal was still pending and the decree was not finalised by the High Court. In the meantime the applicants having failed to obtain stay order from the High Court they wanted to move the Privy Council only against the order refusing to stay. When the High Court had full seisin over the case, the appeal being pending, they passed an interlocutory order during the course of the appeal granting stay of execution of the decree for a short time for enabling them to approach the Privy Council aggrieved by the previous interlocutory order refusing stay.
9. We may next refer to a Division Bench case of the Allahabad. High Court reported in -- 'Atma Ram v. Beniprasad', AIR 1934 All 585 (G) where the judgment was delivered by Sulaiman C. J. There, leave to appeal to His Majesty in Council from an order passed in revision by the High Court was granted under Section 109(c) and the appeal before the Privy Council was pending. The defendant-appellant applied to the High Court that further proceedings in the Court below be stayed till the disposal of the Privy Council Appeal. The question arose whether the Court could exercise inherent power to stay further proceedings in the Court below which are not covered by the strict language of the provisions of Order XLV, Rule 13. Without finally deciding the point, Sulaiman C. J. expressed an opinion that
''We are not prepared to hold that there is an inherent jurisdiction in the High Court to direct Courts subordinate to it to proceed in a particular manner. Section 151. C- P. C. does not confer any jurisdiction on the Court which did not already exist. It merely preserves the inherent power of the Court which it may possess. Varieties of inherent jurisdiction are well recognised, and new categories cannot be invented.'
10. On a review of these decisions, therefore, we are of the opinion that we may safely lay down as a proposition that in such cases of execution of decree, ordinarily the Court has no inherent power to stay unless the case is covered by the provisions of Order XLV, Rule 13, that is to say, the Court cannot order stay of execution of decrees while leave application is pending before granting certificate or when the Court has refused to grant certificate. We are strengthened in our view on another consideration also by looking to the provisions of Order XLI, Rules 5 and 6 -- Rule 5 empowers the appellate Court to stay execution of decree during the pendency of the appeal on sufficient cause; Rule 6 empowers the Court which passed the decree to stay execution of the decree on sufficient security having been furnished during the pendency of the appeal. If the Court has inherent power of staying execution of the decree by such provisions like Order XLI, Rules 5 and 6, Order XLV Rule 13 will be deemed as redundant and unnecessary. Indeed in some cases the judgment and decree passed by the High Court are set aside, but in this case the appellant has the remedy by restriction if the decree has been executed before stay order is obtained from the Supreme Court. The stay petition is, therefore, rejected.
11. I agree.