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Jaganath Mondal Vs. Tarak Ch. Mondal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 599 of 1980
Judge
Reported inAIR1982Cal224,85CWN862
ActsCode of Civil Procedure (CPC) , 1908 - Order 45, Rule 5(!)
AppellantJaganath Mondal
RespondentTarak Ch. Mondal
Appellant AdvocateM.N. Ghosh and ;S.N. Banerjee, Advs.
Respondent AdvocateS.N. Mukherjee and ;Satyajit Banerjee, Advs.
Cases ReferredBissesswari v. Horro
Excerpt:
- .....that a preliminary decree for partition was passed and then an appeal filed. this court issued a rule staying the further proceedings of the preliminary decree. an interim order was later made absolute- meanwhile, the decree holder opposite party filed execution and auction purchased the property. the prayer is for cancelling that sale on the ground that the sale held in the case in the face of stay o further proceedings of the preliminary decree, was void and was liable to be set aside.2. the decree holder opposite party filed an objection.3. the learned munsif rejected the application. hence this revisional application.4. it has been contended on behalf of the petitioner that law in this respect is well-settled after the supreme court decision of mulraj v. murti raghunathji reported.....
Judgment:
ORDER

B.N. Maitra, J.

1. The judgment debtor filed an application praying for cancellation of the auction sale regarding the disputed property held on the 5th December, 1977. His allegation was that a preliminary decree for partition was passed and then an appeal filed. This Court issued a Rule staying the further proceedings of the preliminary decree. An interim order was later made absolute- Meanwhile, the decree holder opposite party filed execution and auction purchased the property. The prayer is for cancelling that sale on the ground that the sale held in the case in the face of stay o further proceedings of the preliminary decree, was void and was liable to be set aside.

2. The decree holder opposite party filed an objection.

3. The learned Munsif rejected the application. Hence this revisional application.

4. It has been contended on behalf of the petitioner that law in this respect is well-settled after the Supreme Court decision of Mulraj v. Murti Raghunathji reported in : [1967]3SCR84 , It has been stated that an order grating, a stay of the execution of the decree against which an appeal has been filed takes effect only from the date when the order is communicated. The interim orderpassed by this Court is dated 1st June, 1977. The Rule was made absolute on 1st June, 1978. The sale was held on the 5th December, 1977, that is, after the Rule was issued and the interim order passed, The execution proceeding is only a continuation of proceeding under the decree and is not an independent proceeding. If further proceedings of the preliminary decree have been stayed, that order includes a stay of the execution case as well. Hence the sale is liable to be cancelled.

5. The learned Advocate appearing on behalf of the O.P. has referred to the decision of Kabiruddin v. Debi Singh reported in AIR 1935 Nag 16 at page 17 to show that under Clause (3) of Rule 5 of O. 41 of Civil P. C. no order for stay of an execution case can be made unless certain conditions are fulfilled, one of which is the furnishing of security. No security was furnished here and hence the execution case was not stayed. The case of Nena Ojha v. Sarbhoo Dutt Ojha in AIR 1921 Pat 328 at page 329 has been cited to show that proceedings held in pursuance of a preliminary decree are proceedings in the suit and not in execution. Since only the further proceedings of the preliminary decree were stayed and no stay order was passed regarding the execution case, the prayer for cancellation of the same cannot be allowed.

6. Order 41, Rule 5 (1) of the Civil P. C. shows that an appeal shall not operate as a stay of proceedings under a decree or an order, nor shall execution of the decree be stayed because an appeal has been filed. That Rule is divided into two parts, one regarding stay of proceedings under a decree and another regarding execution of such decree. According to Clause (3) of Rule 5, no order for stay for execution can be made unless security is furnished and certain conditions are fulfilled. But there are no such limitations when proceedings under the decree are stayed and not the execution case. Order 41, Rule 5, Clause (1) refers both to stay of proceedings and of execution of the decree. In this case, only the proceedings of the preliminary decree and not of the execution case, were stayed. Regarding a sale of such nature, the principles of the cases in : AIR1953Cal467 and : AIR1953Cal116 may be referred to. In the case of Bissesswari v. Horro-sunder reported in (1897) 1 Cal WN 226, it has been stated that an order staying ex-ecution of a decree against which an appeal is pending is in the nature of a prohibitory order and hence, it takes effect only when it is communicated. If the property is sold before such order is communicated to the court holding sale, such sale is not void and is not a nullity. The Supreme Court has stated that this view is correct. The Supreme Court has further stated that in case of a stay order, as opposed to an order of injunction, the court to which the stay order is addressed does not lose jurisdiction to deal with the execution unless it has knowledge of stay. Even after the order of stay is brought to the court's notice, it has power to set aside proceedings taken between the time when stay order was issued and the time when it was brought to its notice, if it is asked to do so and it considers that it is necessary to take recourse to such action. As stated before, the interim order passed by the Court, that the further proceedings of the preliminary decree be stayed, was communicated to the court below on the 18th June, 1977. But that was an order passed in the suit itself and not regarding the execution of the decree. Consequently, the order passed staying the further proceedings of the preliminary decree cannot include also a stay of the execution case as well. The submissions made on behalf of the petitioner cannot be accepted. The sale held in execution of the decree was therefore a valid one and not a nullity.

7. The Rule is, therefore, discharged, There will be no order as to costs.


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