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Harish Kumar Bapalal Vs. Chhanalal Ranchhodlal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 192 of 1964
Judge
Reported inAIR1966Guj281; (1965)GLR498
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 and 68 - Order 41, Rule 5 - Order 20, Rule 7
AppellantHarish Kumar Bapalal
RespondentChhanalal Ranchhodlal and ors.
Appellant Advocate P.V. Nanavati, Adv.
Respondent Advocate S.N. Shelat,; J.K. Chhabra and; C.G. Joshi, Advs.
DispositionRevision dismissed
Cases ReferredVirupaxappa Appa v. Shankar Mallappa
Excerpt:
.....- sections 47 and 68, order 41 rule 5 and order 20 rule 7 of code of civil procedure, 1908 - civil revision application against conditional order passed by court of small causes - stay order granted by an appellate court becomes effective not from moment of its pronouncement but from moment it is communicated to court or authority concern - revision application not maintainable - revision application liable to be dismissed. - - it appears to us that a great deal depends on the nature of the order, the question of good faith and other facts. he is perfectly within his authority in proceeding with the execution so long as the proceedings are not withdrawn from him by an order of the execution court. what principle, then, is there on which we are bound to hold that what was done..........of on a point, which could not havebeen anticipated by the present petitioner andfor which he was not responsible in any manner,there will be no order as to costs of this civilrevision application. the rule is discharged.
Judgment:
ORDER

1. The petitioner in this Civil Revision Application is original defendant No. 2. The original plaintiff and original defendants Nos. 1, 3 and 4 are the opponents in the Civil Revision Application. The plaintiff filed a summary suit, being summary suit No 55/1963, in the Court of Small Causes at Ahmedabad, against the four defendants to recover a sum of Rs. 2000. Thereafter a summons for judgment appears to have been taken out and on February10, 1964, the learned Judge of the Court of Small Causes passed an order granting conditional leave to defend to defendant No. 2, the present petitioner. The condition was that the second defendant should deposit the amount claimed in the suit within two weeks; and on such deposit being made, the defendant was granted leave to defend. The present Civil Revision Application was filed on March 4, 1964 against this conditional order passed by the learned Judge in the Court of Small Causes at Ahmedabad.

2. After the Civil Revision Application was filed, on March 5, 1964, it was admitted and a rule returnable on March 30, 1964, was directed to be issued. An ad interim stay in terms of para 4(b) of the petition was also granted on March 5, 1964 and as a result of that stay order pending the hearing and final disposal of the Civil Revision Application, Summary Suit No. 55/ 1964 in the Court of the Small Causes Court at Ahmedabad was directed to be stayed. However, it appears that before the stay order passed by this Court was communicated to the Court of Small Causes on March 5, 1964, the decree in the Court of Small Causes was passed against the present petitioner arid the learned Judge of the Small Causes Court signed the decree on May 29, 1964.

3. At the hearing of the Civil Revision Application, a preliminary objection has been taken on behalf of the first opponent, the original plaintiff that in view of the passing of the decree against the present petitioner, the Civil Revision Application no longer survives and it is not maintainable any longer. In the course of the present judgment, I am merely concerned with this preliminary objection.

4. There is a conflict of decisions between the different High Courts regarding the moment of time from which a stay order granted by an appellate Court to a subordinate Court or by an executing Court to a Collector or Mamlatdar, who is executing the decree of the Court, becomes effective. The view taken by the Calcutta, Nagpur and Lahore High Courts has been that the stay order becomes effective from the moment it is pronounced and the contrary view which has been taken by Allahabad, Madras, Bombay and Kerala High Courts has been that the stay order becomes effective not from the moment of its pronouncement but from the moment of its communication to the person, who is directed to stay further proceedings concerned. In the case of Karam Ali v. Raja, AIR 1949 Lab 108, a Full Bench of the Lahore High Court considered the various decisions on the point and it held that a stay order tinder Order 41, Rule 5 made by the High Court staying the execution of a decree or an order under appeal operates from the time that such order is made and not from the time of communication to the executing Court. The Lahore High Court took this view after considering all the authorities of the different High Courts in India and preferred the view of the Calcutta, Nagpur and Rangoon High Courts and rejected the view which had appealed to the Allahabad and MadrasHigh Courts. So far as the Bombay High Court was concerned, the only decision which was brought to the notice of the Lahore High Court appears to be the decision in the case of Budrappa Virappa v. Bashettappa Chenbasappa, ILR 52 Bom 290: (AIR 1928 Bom 189). In that case, a Division Bench of the Bombay High Court consisting of Madgavkar and Patkar JJ. did not accept the view that a stay order operates from the moment of its pronouncement. At the same time, they did not accept the opposite view that the stay order becomes effective from the moment that it is communicated to the Court or the officer concerned. At page 293 (of ILR Bom): (at p. 190 of AIR), the Division Bench has stated as follows :--

'It appears to us that it is difficult to lay down a principle as to the moment of operativeness or otherwise of the order by an appellate Court and whether the operativeness of the order dates from the time it is signed or from the time it is communicated. We are indebted to the learned pleader for the appellant for inviting our attention to the recent Full Bench case of the Allahabad High Court, Parsotam Saran v. Barhma Nand : AIR1927All401 , It is difficult to evolve any definite principle from the decided cases. It appears to us that a great deal depends on the nature of the order, the question of good faith and other facts. If, for instance, an order of stay was obtained in time from a competent Court or authority, but was dishonestly delayed in transmission by the action of the decree-holder, the sale would hardly be confirmed. If on the other hand the order was obtained too late for transmission, the risk would be the judgment-debtor's and he would find it difficult to have the sale set aside.''

Without expressing any definite opinion on the question which I have to decide in the present matter, the Division Bench in ILR 52 Bom 290: (AIR 1928 Bom 189) decided the matter before It on a different point altogether.

5. The same point again came up for decision before another Division Bench of the Bombay High Court in the case of Virupaxappa Appa v. Shankar Mallappa : AIR1950Bom260 and the case was decided by a Division Bench consisting of Rajadhyaksha and Chainani, JJ. and the Judgment was delivered by Rajadhyaksha J. In that case, what happened was that in execution of a mortgage decree against the plaintiff the defendant filed a darkhast for sale of the mortgaged property. The papers were transferred to the Collector for execution and the date for holding the auction sale was fixed. A day before the auction sale was to take place the plaintiff deposited the amount in Court and obtained from the executing Court an order for stay of the sale. The order did not reach the Mamlatdar in time and he held the auction sale on the date fixed and sold the property. On the question whether by reason of the order passed by the executing Court staying the proceedings of the Collector the subsequent auction sale of the property was void and of no effect, it was held by the Division Bench as follows :--

'The order of the executing Court took effect from date on which it was communicated to the Collector and that, therefore, the plaintiff could not challenge as being illegal and void, the sale, which took place in the absence of the communication of the stay order of the executing court.'

In the course of his judgment, Rajadhyaksha J. has made it clear that the Division Bench was adopting the view which had been taken by the Allahabad High Court in the Full Bench case of : AIR1927All401 and after citing passages from the judgment of the Allahabad High Court, at p. 299 (of Bom LR): (at p. 263 of AIR), the Division Bench in : AIR1950Bom260 has observed as follows:--

'We are of opinion that this reasoning is equally applicable to an order passed by an executing Court in respect of the stay of execution by the Collector, when the proceedings are, transferred to the Collector under Section 68 of the Civil Procedure Code, the Collector gets jurisdiction to proceed with the sale in accordance with the directions contained in Schedule III to the Civil Procedure Code. He is perfectly within his authority in proceeding with the execution so long as the proceedings are not withdrawn from him by an order of the execution Court. It is only when an order of the executing Court withdrawing the proceedings is communicated to the Collector, that he would cease to have jurisdiction to proceed with the matter.'

It is also significant to note that the following passage from the judgment of the Allahabad High Court in : AIR1927All401 was cited with approval by the Division Bench in : AIR1950Bom260 .

'When an appellate Court orders stay of execution it gives a direction to somebody. The execution is not in the hands of the appellate Court. It has to tell the Court of first instance that it is to stay its hand in the execution of its decree. It necessarily follows that if the lower Court has no information of the order of the appellate Court it cannot stay execution and the execution must proceed. What principle, then, is there on which we are bound to hold that what was done in perfect good faith and in possession of clear Jurisdiction becomes null and void solely because, unknown to the Court below an order had been passed?'

In view of this decision of the Bombay High Court, by which I am bound, and with which I am in respectful agreement, the question regarding the effectiveness of the stay order must be answered against the petitioner and it must be held that the stay order granted by an appellate Court becomes effective not from the moment of its pronouncement as has been held by the Lahore, Calcutta, Rangoon and Nagpur High Courts but becomes effective from the moment that it is communicated to the Court or the authority concerned as has been held by the Allahabad, Madras, Bombay and Kerala High Courts.

6. Under these circumstances, it is clear that the decree passed by the Court of SmallCauses on March 5, 1964, before the stay order granted by this Court was communicated to that Court, which communication took place on March 6, 1964, was a proper decree and in view of that decree, the present Civil Revision Application is no longer maintainable.

7. Mr. Nanavaty, on behalf of the petitioner, urged before me that, at any rate, the signing of the decree on May 29, 1964, after the stay order granted by this Court had been communicated to the trial Court was contrary to the stay order passed by the Court. In this connection, it is necessary to bear in mind that a decree of a Court becomes effective from the moment that the judgment in the matter is pronounced by the Court concerned and that is the date which the decree must bear. The decree as drawn up by the Court is a formal expression of the decision of the Court and it must bear the date on which the judgment is pronounced though when the Judge signs the decree after satisfying himself that the decree is in accordance with the judgment of the Court some time must elapse between the date when the judgment was pronounced and the date when the Judge signs the decree. The proceedings in the suit are at an end when the judgment and decree are pronounced and signing of the decree, which is a purely consequential administrative function, cannot be said to be a further proceeding in the suit. Under these circumstances, it is clear that there was no breach of the stay order passed by this Court by the action of the learned Judge of the Court of Small Causes in signing the decree in question.

8. It is clear that the judgment pronounced by the trial Court on March 5, 1961, disposed of the suit so far as the present petitioner was concerned and so long as that decree stands, the present Civil Revision Application is certainly not maintain able. The Civil Revision Application is against the order granting conditional leave to defend in the suit and once a suit has finally been disposed of against the petitioner, as has been in fact done on March 5, 1964, nothing further requires to be done in the per-sent Civil Revision Application.

9. In the result, this Civil Revision Application fails and is dismissed. In view of the factthat this Civil Revision Application has beendisposed of on a point, which could not havebeen anticipated by the present petitioner andfor which he was not responsible in any manner,there will be no order as to costs of this CivilRevision Application. The rule is discharged.


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