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Ayyammal and anr. Vs. Thangavelu Padayachi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberA.A.A.O. No. 90 of 1949
Judge
Reported inAIR1950Mad317
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 151 - Order 41, Rule 5
AppellantAyyammal and anr.
RespondentThangavelu Padayachi
Appellant AdvocateK.S. Desikan and ; T.R. Ramachandran, Advs.
Respondent AdvocateS. Amudachari, Adv.
DispositionAppeal dismissed
Cases ReferredVenkatachalapatirao v. Kameswaramma
Excerpt:
- - 391. there the question referred for opinion of the full bench was as follows :where subsequent to an interim order for stay of execution made by the appellate court without notice to the decree-holder but before its communication to the court of first instance, an order for attachment has been made by the latter court, is the order of attachment void and ineffectual as having been made without jurisdiction ?' the learned judges of the full bench held that the attachment would not be void or ineffectual and would be perfectly legal. i do not think that an order obtained under these circumstances could be allowed to stand, and the court had perfect jurisdiction to vacate such an order......1948. the defendant respondent filed an application e. a. no. 194 of 1948 on 15th april 1948 for stay of execution of the decree pending his filing an appeal and obtaining an order of stay from the appellate court. notice of this application was served on the pleader for the plaintiffs, and this application, after several adjournments and after objection raised on behalf of the plaintiffs, was finally heard on 11th june 1948 when stay of execution of the decree was granted by the district munsif of turaiyur pending the obtaining of stay from the, appellate court. the decree in o. s. no. 395 of 1947 was apparently transmitted to the district munsif's court of ariyalur for execution, and it is not shown to me how the decree was transmitted for execution to a different munsif altogether......
Judgment:

Krishnaswami Nayudu, J.

1. This is an appeal by the plaintiffs in O. S. No. 395 of 1947 on the file of the Court of the District Munsif of Turaiyur against the appellate order in A. S. No. 887 of 1948 directing them to re-deliver possession of a house to the respondent in this appeal. The appellants who are plaintiffs in O. S. No. 395 of 1947 obtained a decree for possession of a house on 8th March 1948. The defendant respondent filed an application E. A. No. 194 of 1948 on 15th April 1948 for stay of execution of the decree pending his filing an appeal and obtaining an order of stay from the appellate Court. Notice of this application was served on the pleader for the plaintiffs, and this application, after several adjournments and after objection raised on behalf of the plaintiffs, was finally heard on 11th June 1948 when stay of execution of the decree was granted by the District Munsif of Turaiyur pending the obtaining of stay from the, appellate Court. The decree in O. S. No. 395 of 1947 was apparently transmitted to the District Munsif's Court of Ariyalur for execution, and it is not shown to me how the decree was transmitted for execution to a different Munsif altogether. However it is not material for a consideration of the points raised in this case. On 15th June 1948 the appellants filed an execution petition in the Court of the District Munsif of Ariyalur for recovery of possession of the suit house in execution of the decree without bringing to the notice of that Court the order of stay passed on 11th June 1948 by the Court which passed the decree. A delivery order was made on that date and the warrant for delivery of possession was executed on 19th June 1948. Plaintiffs recovered possession of the property. On 21st June 1948 the respondents filed their appeal in the District Court of Tiruchirapalli and applied for stay of the lower Court's decree, and after interim stay was granted a report was called for on the objection of the appellants that in fact the property had been taken possession of in execution, and on the strength of the report of the Commissioner the District Court made the final order on 28th July 1948 whereby the stay granted by that Court dated 29th June 1948 was made absolute with regard to the portion not delivered, viz., one room. In other respects the petition was dismissed, as it was found from the report of the Commissioner that excepting one room the rest of the property was delivered over to the appellants. The respondent filed an application E. A. No. 231 of 1948 in the District Munsif's Court of Ariyalur under Sections 47, 144 and 151, Civil P. C. praying that the Court may be pleased to set aside the order of delivery dated 19th June 1948 and order re-delivery of the property. The learned District Munsif of Ariyalur dismissed the petition observing that if at all, a case was made out for contempt of Court rather than for redelivery. As against that order A. S. No. 887 of 1948 was filed by the respondent and the learned Subordinate Judge of Tiruchirapalli allowed the appeal and directed re-delivery. This appeal is against the order of the learned Subordinate Judge.

2. The learned counsel for the appellants contends that no appeal lay from the order of the District Munsif of Ariyalur in E. A. No. 231 of 1948 as it did not come under any of the provisions, viz. Sections 47, 144 and 151 of the Code. The learned counsel urges that it is not a matter relating to execution, and as such it would not come under Section 47, nor was it an application under Section 144 as there is no restitution. The lower appellate Court held, relying on Sahu Nand Kishore v. Shadi Ram : AIR1926All457 , Superior Bank Ltd., Muzaffarnagar v. Budh Singh A. I. R. 1924 ALL. 698 : 83 I. C. 1028 and Mulraj v. Buramal, 12 Lah. 602 : A. I. R. 1931 Lah. 344, that such an application could come within the scope of Section 47, Civil P. C. In those cases it was held that where a sale takes place in contravention of the express direction of Court, the Court has inherent power to set aside the sale suo motu. It was also held that an application to set aside the sale held in contravention of a stay order is, as between parties to the suit, an application under Section 47, Civil P. C. I am of opinion that it cannot be said that an application to direct re-delivery of a property delivery of which was ordered in execution of a decree could be said to be not as one relating to the execution of a decree. In any event the application is in my view maintainable under Section 151, Civil P. C.

3. The next contention is that the order directing delivery of possession on 15th June 1948 by the District Munsif of Ariyalur was in ignorance of the stay order passed by the District Munsif of Turaiyur in E. A. No. 194 of 1948 and that there was nothing to show that the order of stay of the Turaiyur Court had been communicated to the Ariyalur Court, and in the absence of communication orders passed in ignorance could not be held to be illegal or void. For this position the learned counsel relied on the Full Bench case in Venkatachalapatirao v. Kameswaramma, 41 Mad. 151 : A. I. R. 1918 Mad. 391. There the question referred for opinion of the Full Bench was as follows :

'Where subsequent to an interim order for stay of execution made by the appellate Court without notice to the decree-holder but before its communication to the Court of First Instance, an order for attachment has been made by the latter Court, is the order of attachment void and ineffectual as having been made without jurisdiction ?'

The learned Judges of the Full Bench held that the attachment would not be void or ineffectual and would be perfectly legal. In this case the stay of execution was made with notice and the order for delivery of possession was made at the instance of the appellants who must be deemed to have been aware of the stay granted by the Turaiyur Court, they having been parties to the application represented by counsel who took part in the proceedings, and it could not therefore be said that they were unaware of it. Having been aware of the order of stay, to apply for execution as if there was no stay would amount to a conduct which cannot be approved by any Court. Further, it appears to me that the appellants practised a fraud on the Court by failing to disclose the information to the Court and asking for execution, having been aware of the stay already granted by the Court which passed the decree. I do not think that an order obtained under these circumstances could be allowed to stand, and the Court had perfect jurisdiction to vacate such an order. To allow such a state of things would be to encourage practices whereby orders of Court are made ineffective by conduct of parties.

4. It is further contended by the learned counsel for the appellants that the order dismissing in effect the application for stay of execution filed before the appellate Court pending disposal of the appeal excepting in respect of a room, would be a bar to the executing Court in Ariyalur to order re-delivery of possession, and further it was the duty of the respondent to have brought it to the notice of the appellate Court when the application for stay of execution was filed about the fact of delivery having been made and asked for appropriate direction from the appellate Court itself. What the appellate Court was concerned with was whether an application for stay of execution of the decree pending disposal of the appeal could be granted, and when it was pointed out the appellate Court must have felt that there was nothing to stay and therefore must have dismissed the application. The proper procedure for the respondent was therefore to have gone to the Court which made a wrong order in ignorance of the order of stay to have it corrected by vacating the same and directing re-delivery. I think the order of the District Court dismissing the application for stay of execution cannot be said to be a bar to directing re-delivery of possession.

5. In the result the appeal is dismissed with costs.

6. Leave refused.


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