(1) On or about 18-8-1953, Shri N. R. Batra got allotted 112 standard acres 7 units in village Ratauli (Jagadhri). This allotment was effected after cancelling allotment of some land originally allotted in favour of respondents, Prem Singh, his brother Narain Singh and wife Raj Kaur. Civil Writ No. 269 of 1953 was filed by Prem Singh, his brother and wife challenging the proceedings relating to the allotment in their favour. Civil Writ No. 269 of 1953 finally got dismissed on 18-10-1955. Prem Singh etc. moved this Court by Civil Miscellaneous No. 883/C of 1955 on 28-10-1955, for leave to appeal to the Supreme Court and obtained ex parte stay order in the terms as under: 'Stay on furnishing security for mesne profits.' Prem Singh etc., however, did not furnish any security in this behalf and on 10-7-1956, this Court ordered in continuation of the last stay order in the following terms:
'Two weeks' time allowed to give security for mesne profits for two years at the rate of Rs. 10,000/-per year.'
Prem Singh etc. filed the necessary security. On Daswant Singh stood surety. Necessary bond in that behalf was filed on this Court. The appeal by Prem Singh etc. got heard in the Supreme Court and resulted in dismissal.
(2) After the dismissal of the said appeal by the Supreme Court, Mr. Batra moved this Court, by Civil Miscellaneous No. 1665/C of 1957 on 4-12-1957, praying for the giving of effect to the stay order dated 10-7-1956. It was submitted that the mesne profits, as contemplated by the stay order be made payable from Prem Singh etc., failing them, from the surety. In Civil Miscellaneous No. 1665/C of 1957 notice was issued to Prem Singh etc., and the surety.
On the surety not having been served and the allegations made that service was willfully evaded, this Court was moved on 15th May, 1958, by Mr. Batra praying for temporary injunction mean-while restraining the respondents--Prem Singh etc.,--from selling their properties, Temporary in junction as prayed for was granted by this Court. On 25-7-1958, Prem Singh etc., filed Civil Miscellaneous No. 1046/C of 1958 seeking vacation of the said temporary injunction. The judgment will dispose of both Civil Miscellaneous No. 1665/C of 1957 and No. 1046/C of 1958.
(3) The learned counsel for the respondents (Prem Singh etc.) in Civil Miscellaneous No. 1965/C of 1957 urged that the security for mesne profits could not be enforced by this Court either under S. 145 of 151 of the Code of Civil Procedure. It was contended that the remedy of the applicant Batra was by a regular suit, for the surety by the terms of the bond executed had hypothecated his property and created a mortgage as well as made is person liable under the terms of the bond and to enforce such a contract the parties had to have recourse to the ordinary Civil Courts.
It was also contended that for the terms and for the bond not having been executed in favour of this Court, the same could not be enforced in the present proceedings. It was further urged by the learned counsel that the reading of S. 145 of the code of Civil Procedure showed that the provisions apply to suits or proceedings arising from or consequent thereupon. The Civil writ proceedings, it was maintained were not such proceedings. To support this contention, the learned counsel cited Ko Maung Gyi v. Daw Tok, AIR 1928 Rang 249, Sm. Bhagwanti v. New Bank of India Ltd., AIR 1950 EP 111)FB) and Khushiram Tejbhandas v. Jhalibai, AIR 1926 Sind 35.
(4) Mr. Suri, learned counsel appearing for the applicant in Civil Miscellaneous No. 1665/C of 1957, controverted the above stated proposition and successfully distinguished the cases cited on behalf of Prem Singh etc. It was in the first instance urged that proceedings in civil writs were analogous to proceedings in suits and that S. 145 of the Code of Civil Procedure applied to civil writs both in spirit and terms. Support in this behalf was sought from decision in Kapur Singh v. Union of India, 1957-59 Pun LR 331: ((S) AIR 1957 Punj 173)(FB). One of the questions referred to the Full Bench for decision was whether the proceedings in a writ under Art. 226 of the Constitution were civil proceedings.
The observations made while answering and determining the question do lend support to the contention of the learned counsel. Civil Proceedings were defined as a judicial process to enforce a right and included any remedy employed to vindicate that right. The definition propounded, therefore, clearly covered civil writ proceedings. Proceeding the learned counsel contended that the cases cited by the counsel for the opposite party were distinguishable. After a pointed reference and examination of the said cases, it was submitted that AIR 1928 Rang 249 was a case under the Succession Act, and could not be an authority for the proposition in question. When considering the question whether section 145 of the Code of Civil Procedure applied or not, Das J., observed:
'There is no suit in which the appellants render themselves liable as sureties. The proceeding for the grant of letters of administration is not a suit though it may take the form of a suit. The appellants only render themselves liable under the terms of the administration bond and the only way to proceed against them would be to obtain an assignment of the administration bond as provided by S. 292, Succession Act.'
Consequently, Section 145 of the code of Civil Procedure was held not to apply. Similarly, AIR 1926 Sind 35-a case under the Guardians and Wards Act--was distinguished to have been decided on its own facts. It was submitted that S. 35 of the Guardians and Wards Act, provided for the enforcement of the specific bond by way of a suit and the case could have no bearing on the point in hand. AIR 1950 EP 111 again was shown not to be in point.
(5) For the view that proceedings in civil writs are analogous and akin to proceedings in civil suits, the conclusion is inescapable that the matter is covered by S. 145 of the Code of Civil Procedure. In any event, there could be no bar to the application of S. 151, of the Code of Civil Procedure, particularly in view of the observations of their Lordships of the Privy Council in Rohani Ramandhwaj Prasad Singh v. Har Prasad Singh, AIR 1943 PC 189, to the effect that a relief similar to the one as claimed in the instant case was the one which nevertheless was enforceable under the Court's inherent powers.
I have for the facts of this case no doubt that it is pre-eminently at fit case for the application of inherent powers of the Court. The stay was granted by this Court in terms to benefit the petitioner in continuation of civil writ proceedings launched in this Court. By the said order Prem Singh etc, avoided delivery of possession of the land in question. The bond with the surety was ordered to secure and protect the interests of Batra. The principals Prem Singh etc., could not be heard to maintain that under the terms of the order of stay they had no liability whatsoever and Batra should be relegated to seek his remedy against the surety in a civil suit. The surety was filed by Prem Singh etc., in pursuance of the rode of this Court. Any dispute arising and relief claimed in respect of the said stay order will have to be enforced in this Court.
(6) For all these reasons, I am of the considered view that Prem Singh etc., as well as the surety are bound to make good the obligations enjoined in pursuance of the stay order in question. I am, however of the view that Batra, the applicant, was entitled to the actual mesne profits deducible for the duration for which he had been kept out of possession. In this behalf, therefore, it would be necessary to ascertain the actual amount to mesne profits arising for the period in question. I would accordingly direct the Senior Subordinate Judge, Ambala, (where the land in question is situated) to hold an enquiry according to law to determine the actual amount of mesne profits for the material period, which appears to be from 10-7-1956, when the stay order was granted by the High Court to 13-6-1957, when the possession of the land was delivered. The relevant records must be sent forth-with to the Court of Senior Subordinate Judge for him to proceed with all expedition in the light of the above observations. The learned Senior Subordinate Judge is further directed to submit him report with the necessary findings to this Court at an early date.
(7) The parties are directed through counsel to appear before the learned Senior Subordinate Judge Ambala, for proceedings in this behalf on 17th November, 1958.
(8) As regards Civil Miscellaneous No. 1046/C of 1958, the temporary injunction restraining Prem Singh etc. for disposing of their entire properties cannot be continued. All that is necessary, in the circumstances of this case, is to secure Batra in regard to the amount of the mesne profits. Keeping that I view, I would modify the injunction order in question to the extent that Prem Singh etc. would not alienate or deal with their Delhi Property and Delhi business as referred and mentioned in the petition and affidavit dated 25-7-1958, in any manner whatsoever till the amount to mesne profits is made good.
(9) Subject to this modifications as indicated the interim order granting injunction will continue.
(10) There will be no order as to costs of these petitions.
(11) Order accordingly.