1. This rule is directed against an order of the Additional District Judge of Howrah rejecting an application by the petitioners for stay of execution of a decree against which an appeal is pending in that Court. The suit was for joint possession of an 8-annaa share in the property in dispute. It was decreed in the Court of first instance and the order passed was for the delivery of khas possession to the plaintiffs. The petitioners are the defendants and they have preferred an appeal against that decree which is pending in the Court of the Additional District Judge of Howrah. The learned Judge passed the following order on this application. ' Stay is opposed. It is pointed out that the suit was instituted in 1920 and not decreed until 1923 and that 9 1/2 months have elapsed between the finding of appeal and the petition for stay. In the circumstances the petition is rejected.'
2. This Rule has been issued on the ground that the learned Judge has acted with material irregularity in the exercise of his jurisdiction inasmuch, as ha has not considered this application on its merits but has based his judgment on two facts only, namely that the suit was pending in the First Court for about three years and in his Court for about 9i months.
3. With regard to the time taken in the Court of first instance, it is rightly argued, to my mind, that the defendants cannot be held responsible for it. The conduct of the suit was in the hands of the plaintiffs, and no material has been placed either before the Judge or before us for holding that the defendants were in any way responsible for the lengthening of the proceedings in that Court.
4. With regard to the time during which the appeal was pending before the learned Judge, it is not, in the first instance, in excess of the ordinary period generally taken up in hearing appeals in the Courts below and, secondly, the execution was not applied for during this period. The petitioners have been diligent in presenting this petition. The execution was applied for on the 15th of January, 1924. Notices upon the petitioners were served an the 29th of January and this application was presented on the 31st of January. It appears, therefore, that the materials upon which the learned Judge has based his order do not support it.
5. It is argued by the opposite party that this is a matter into which we have no jurisdiction to enter under Section 115 of the Code of Civil Procedure and reference has been made to the well-known case of Amir Hassan Khan v. Sheo Baksh Singh (1885) 11 Cal. 6, and to other cases that followed it. It is not necessary to refer to the numerous decisions upon this point as every case has been decided on its own merits and the principles in the various cases have been invoked in order to support the decision in each case. I may refer, however, to the last pronouncement of their Lordships of the Judicial Committee of the Privy Council on this point; in the case of Balakrishna Udayar v. Vasudeva Aiyar A.I.R. 1917 P.C. 71. Their Lordships there observe that Section 115 of the Civil Procedure Coda concerns itself with questions of jurisdiction, namely, the refusal to exercise jurisdiction the irregular exercise of it or the illegal assumption of it. The present case seems to me to be one of illegal exercise of jurisdiction. When a petitioner presents a petition before a Court, it is the duty of the Court-a duty which is cast upon it by the law of the land-to look into the matter, to give its consideration to it and to come to decision on all the materials that have bean placed before it. If the Court does not do so, though id may have jurisdiction over the subject-matter of the litigation, it fails to exercise that jurisdiction in a regular way and in a case like that this Court as the Court of superintendence, has power to interfere to set it right. I will not refer to the many cases in which this course has been adopted, but I will only make reference to the case of C. D. M. Hindley v. Joynarain Marwari (1920) 46 Cal. 962.
6. I would have felt considerable hesitation in interfering with the order of the lower Court, but I am greatly influenced by the fact that on the face of it, the execution of the decree may cause great injury to the petitioners and create unnecessary complications. The suit, as I have observed, is one for declaration of the plaintiff's title to 8-annas of the property and for joint possession. The decree that has been passed by the First Court is for khas possession. It is not for me to say whether the Court will stay execution in this case but it certainly raises a point in favour of the petitioners in support of their application for stay of execution. In my judgment, the learned Judge did not give proper consideration to this matter and, therefore, though he had jurisdiction over the subject-matter, he exercised it in an irregular way within the meaning of the Privy Council case to which I have referred. I would, therefore, make this Rule absolute, discharge the order of the lower Court and send the case back to that Court for a consideration of the petitioners' application.
7. I have the misfortune to differ from my learned brother, and I do so with great diffidence and reluctance. We are invited in this Rule, in the exercise of our revisional powers under Section 115 of the Civil Procedure Code to set aside an order of the learned District Judge of Howrah rejecting an application for stay of execution of a decree pending appeal. The order complained of, which is dated the 18th February, 1924, is in the following terms; ' Stay is opposed. It is pointed out that the suit was instituted in 1920 and not decreed until 1923, and that 9i months have elapsed between the filing of appeal and the petition for stay. In the circumstances the petition is reject-ed.' The grounds on which the order is assailed are, firstly, that the lower Court exercised its jurisdiction illegally and with material irregularity in rejecting the application for stay of execution of the decree pending the hearing of the appeal, secondly that the lower Court exercised its jurisdiction illegally in rejecting the petitioner's application on the ground of delay inasmuch as, under the circumstances of the case, no conceivable delay could be imputed to them, thirdly, that the lower Court committed an error of law in acting upon the principle that it was the duty of the appellants to make an application for stay immediately after the filing of the appeal even though the decree-holder had taken no steps to execute the decree, fourthly, that there being no circumstances present, which would justify the Court in rejecting the application for stay, the Court below exercised its jurisdiction illegally and with material irregularity in rejecting it on a wrong ground, fifthly, that the Court below looked at the case from a wrong angle altogether and exercised its jurisdiction illegally in failing to advert to the questions of law and fact which were necessary to be decided in a case like this, sixthly, that the Court below ought to have held that the plaintiffs being entitled under the decree only to the land and not to the house erected upon it the effect of execution of the decree would be to demolish the house which was erected upon the suit land, and, lastly, that the Court below should have held that the decree cannot be executed at this stage unless the land is demarcated by proper partition. The point for determination is whether any case has been made out for our interference.
8. Now Section 115 of the Civil Procedure Code enables the High Court in a case in which no appeal lies to call for the record of any case, if the Court by which the case was decided, appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. It is not claimed that the learned Additional District Judge exercised a jurisdiction not vested in him by law, and it is clear that he had jurisdiction to make the order in question. But it has been urged on behalf of the petitioners that he acted illegally and with material irregularity in refusing to grant a stay of execution by reason of an erroneous view of the law, that the reasons given for such refusal are inadequate, and that in fact the learned Judge has not properly considered the application.
9. In my judgment, these contentions are without substance. In the first place it is to be observed that the power conferred by Order 41, Rule 5 of the Civil P.C. upon appellate Courts is discretionary, though of course that discretion must be judicially exercised. This Court will not however, ordinarily interfere unless there has been an arbitrary exercise of the discretion so conferred, or unless some other good ground is made out for interference. The learned Additional District Judge has given two reasons for rejecting the application, namely, first, that the suit was instituted in 1920 and not decreed till 1923, and secondly, that 9 1/2 months elapsed between the filing of the appeal and the filing of the application for stay. The first may not be good reason, since it is not clear that the petitioners were necessarily responsible for the delay in the disposal of the suit. The second reason, however, namely, the delay in making the application, is a good ground and a ground upon which the Court could properly refuse to grant a stay (vide Order 41, Rule 5 (3) (6) of the Civil Procedure Code). In regard to this, however, it has been urged by the learned Vakil for the petitioners that, in point of fact, no delay could be imputed to thorn, inasmuch as the application for execution was made on the 15th of January, and upon notice thereof being served upon them on the 29th of January, they immediately applied on the 31st of January, that is to say, two days later, for a stay of execution. The argument appears to be that the petitioners were not bound to apply for a stay until execution was applied for, that it would have been pre-mature for them to do so, and that in the circumstances there cannot be said to have been any delay in making the application.
10. It seems to me to be open to doubt whether this is a correct view of the matter. Rule 5 of Order 41 says that an appeal shall not of itself operate as a stay of proceedings under a decree, but the appellate Court may for sufficient cause order stay of execution, and then Sub-section (3) (b) goes on to lay down that no order for a stay shall be made 'unless the Court making it is satisfied that the application has been made without unreasonable delay.' The Rule, therefore, would appear to contemplate that an application for stay of execution should be made as soon as possible after the filing of the appeal. Nor does there seem to be anything unreasonable in this view. When once the decree has been passed it may be fairly presumed that sooner or later it will be put into execution, and an application to that end may be made at any time so that the appellant, if he wants a stay of execution, should make his application at as early a stage as possible. In this particular instance the appellants allowed 9i months to elapse before applying for a stay.
11. In rejecting the application it cannot, in my opinion, be said that the learned Additional District Judge has exercised a jurisdiction not vested in him by law, or that he has acted in the exercise of his jurisdiction illegally or with material irregularity. There cannot be any doubt that he had jurisdiction to decide the matter and he did decide it. Whether he decided it rightly or wrongly seems to me to be beside the point. The principle applicable to such cases has been laid down in numerous reported decisions of the Courts: Amir Hassan Khan v. Sheo Baksh Singh (1885) 11 Cal. 6, Shew Prosad v. Ram Chunder (1914) 41 Cal. 323, Ram Singh v. Salig Ram (1905) 28 All. 84, Amritrao Krishna v. Balkrishna Ganesh (1887) 11 Bom. 488 and Madhavrao Ganeshpani v. Gulabbhai Lallubhai (1899) 23 Bom. 177. Whether the learned Additional District Judge came to right decision or not he acted within his jurisdiction, and, even if we have the power to revise the order, as I think we undoubtedly have, there is, in my opinion, no sufficient ground for interference.
12. For these reasons I would discharge the Rule.
13. Under Section 36 of the Letters Patent my judgment, as that of the Senior Judge, should prevail. The Rule is made absolute, the order of the lower Court is set aside and the case; remanded to that Court for consideration of the petitioner's application. Costs will abide the result, hearing fee one gold mohur.
14. Let the record be sent down at once.