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Sarup Lal Vs. Sm. Kaushalya Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. No. 805/C of 1955
Judge
Reported inAIR1956P& H225
ActsCode of Civil Procedure (CPC) , 1908 - Order 45, Rule 13 and 13(2)
AppellantSarup Lal
RespondentSm. Kaushalya Devi and anr.
Appellant Advocate N.L. Salooja, Adv.
Respondent Advocate D.K. Mahajan, Adv.
Cases ReferredChet Ram v. Ram Singh
Excerpt:
.....to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in..........singh v. bhabeshwar singh 1 ind cas 812 (cal) (fb) (b) where it was held that a court cannot under rule 13(2), clauses (c) & (d), stay proceedings after preliminary decree is passed, because they are proceedings in the suit and not proceedings in execu-tion. it was observed:'it is clear that it gives power to stay execution of the decree, it does not give the power tostay proceedings under the decree. the learned advocate general has argued that the power is in-eluded under sub-section (d) which i have just read; but we do not think that the section bears the in-terpretation which he places upon it. order 41, rule 5 provides in express terms under what condition the proceedings under a decree can be stayed, and we think that if it had been intended, under order 45, rule 13, to place that.....
Judgment:

Kapur, J.

1. This is an application made by Sarup Lal who has obtained leave to appeal to the Supreme Court against a judgment of this Court dated 24-12-1953. This certificate was granted on 21-7-1954. He has now applied under Order 45 Rule 13 Civil P. C. praying that the operation of the order of this Court be suspended and respondents 1 & 2 be restrained, from alienating the property sold to them. Rule was issued by me and as I was of the opinion that this matter should be heard by a Division Bench and not by a single Bench the case has been placed before this Bench.

2. Leave was granted on 21-7-1954 and the application for stay was made on 26-9-1955.

3. An objection has been raised that under Order 45 the prayer made in this petition cannot be granted. The present petitioner sold to the opposite parties some land and disputes arose in the Revenue Department as to mutation and the Chief Commissioner ordered the mutation to be set aside and mutation proceedings to be started de novo.

It was against this order that the opposite parties brought a petition to this Court under Article 226 of the Constitution. This petition was allowed and in the present application made by Sarup Lal petitioner it is stated that during the years 1954 and 1955 the opposite parties entered into 41 transactions of sale with the result that about half of the land sold has already been sold.

4. The petitioner relies upon Clauses (b) and (d) of Rule 13(2) of Order 45, but in proceedings such as the one now before us neither of these two clauses are applicable. The matter was considered by a Bench of the Madras High Court in Rajahmundry Electric Supply Corporation Ltd. v. State of Madras AIR 1953 Mad 475 (A) where it was held that Clause (d) of Rule 13(2) does not enable the Court to give any direction to the successful party either restricting the exercise of rights or preventing him from exercising the rights to which he has become entitled under its final order.

In that case also the petitioner seeking to appeal to the Supreme Court had prayed for the grant of stay of the operation of the order made by the Court and the prayer was rejected because it did not fall within the scope of Clause (d) of Rule 13 (2). It was observed:

'That provision only enables this Court to place the party seeking the assistance of the Court under any conditions which this Court may think fit to impose. And it enables this Court to give such other direction, that is to say, direction other than a direction placing the party under any condition respecting the subject-matter of the appeal, such as for instance, by an order directing the appointment of a Receiver. The provision does not enable this Court to give any direction to the successful party by way of restricting or preventing him from exercising the rights to which he has become entitled under the final order of this Court.'

5. The respondents next relied upon a judgment of the Calcutta High Court in Laliteswar Singh v. Bhabeshwar Singh 1 Ind Cas 812 (Cal) (FB) (B) where it was held that a Court cannot under Rule 13(2), Clauses (c) & (d), stay proceedings after preliminary decree is passed, because they are proceedings in the suit and not proceedings In execu-tion. It was observed:

'It is clear that it gives power to stay execution of the decree, it does not give the power tostay proceedings under the decree. The learned Advocate General has argued that the power is in-eluded under Sub-section (d) which I have just read; but we do not think that the section bears the in-terpretation which he places upon it. Order 41, Rule 5 provides in express terms under what condition the proceedings under a decree can be stayed, and we think that if it had been intended, under Order 45, Rule 13, to place that power in the hands of the Court whose decree is appealed from it would have been given in the same express terms.'

A Division Bench of the Allahabad High Court in Chet Ram v. Ram Singh 64 Ind Cas 152 (C) refused to give relief where in execution of a decree of a High Court possession had been taken by the decree-holder and he had started proceedings in the Revenue Department to eject the judgment-debtor from certain sir and khudkasht lands, and it was held that this is not a matter which falls under Order 45, Rule 13(d). Civil P. C.

6. Mr. Saluja relied on Clause (d) of Rule 13(2) which provides:

'13(2) (d). The Court may, if it thinks fit,on special, cause shown by any party interested inthe suit, or otherwise appearing to the Court, placeany party seeking the assistance of the Court undersuch conditions or give such other direction respecting the subject-matter of the appeal as itthinks fit, by the appointment of a receiver or other-wise.'

But I do not think that that clause covers the pra- yer made by the petitioner. The researches of thepetitioner's counsel do not seem to have resultedin the discovery of any case which supports the contention raised by him. I would, therefore, dis-charge the rule issued by me on 27-9-1955.

7. Parties will bear their own costs in these proceedings.

Falshaw, J.

8. I agree.


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