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Sm. Tarulata Devi Vs. Bibhuti Bhushan Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 55 and Civil Revn. Case No. 534 of 1951
Judge
Reported inAIR1953Cal467,57CWN205
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 5
AppellantSm. Tarulata Devi
RespondentBibhuti Bhushan Roy and ors.
Appellant AdvocateKrishnalal Banerjee and ;Hari Charan Banerjee, Advs.
Respondent AdvocateJitendra N. Guha and ;Paritosh Sarkar, Advs.
DispositionRevision and appeal dismissed
Cases ReferredLiakat v. Padampat
Excerpt:
- .....to record our opinion on the point. mr. banerjee contended that the moment 'ad interim' order for stay of proceedings is made by a superior court, the court below in which the proceedings are pending becomes incompetent to exercise its jurisdiction in those proceedings. it is contended that the effect of an order for stay, even though uncommunicated, is to suspend the operation of the proceedings in the court below. in support of this submission reference has been made to the case of --'hukumchand baid v. kamalanand singh', 33 cal 927(b). in that case 'ad interim' order for stay of delivery of possession had been obtained from this court but before the order was communicated to the court below, the court below had delivered possession to the decree-holders.thereupon a further rule was.....
Judgment:

G.N. Das, J.

1. These two matters are interrelated and arise out of certain proceedings in execution of a decree which was obtained by respondents 1 and 2 against respondent 3 in Suit No. 16 of 1943. The decree was passed on 4-5-1943. The decree was for recovery of money which was due to respondents 1 and 2 in respect of a legacy given to them by one srimati Saila Sudha Devi. The allegation was that the money due under the legacy, had been misappropriated, by respondent 3 who was the executor under the last will of Srimati saila Sudha Devi. Tins decree was executed on certain occasions. Ultimately, on 27-5-1948, the present appellant the petitioner stood surety for the due performance of the decree by her husband, respondent 3, the judgment-debtor.

The appellant agreed to pay the decretal dues in certain instalments and in case three consecutive instalments were unpaid she bound herself to pay the decretal dues and as security for payment of the said dues created a charge in respect of the property now in dispute. As was to be expected, three consecutive instalments were not paid with the result that the decree-holders proceeded to realise the unpaid decretal dues by a sale of the charged property after taking the necessary proceedings as contemplated by Section 145, Civil P. C. Ultimately, the executing Court directed the disputed property to be put up to sale. The order for sale was made on 19-11-1949. On 23-11-1949, sale proclamation was issued fixing the sale for 9-1-1950. On 22-12-1949, the appellant moved this Court in revision against the order of the executing Court dated 19-11-1949, directing the disputed property to be sold.

The appellant obtained a Civil Rule being No, 2026 of 1949, and an 'ad interim' order for stay of further proceedings pending in the Court below was made by this Court. It is common ground that the 'ad interim' order was not communicated by this Court to the Court below at any time before 9-1-1950. It appears that on that date the appellant's pleader wanted to move the Court below by an unverified petition praying for stay of the sale. The executing Court thereupon askedthe appellant's pleader to move the petition inthe presence of the decree-holders. It is stated that the appellant's pleader failed to get in touch with the pleader for the decree-holders.

In consequence the petition was never moved in Court and the sale took place as scheduled on 9-1-1950. The property was knocked down to the decree-holders at the highest bid of Rs. 28,000/-. The bid however was not accepted till 25-5-1950. It does not appear that at that stage the appellant made any grievance before the executing Court that in view of the order for 'ad, interim' stay the sale was not an effective one and should not be confirmed. It appears that Civil Revn. No. 202S of 1949 (A), was ultimately heard by this Court and the Rule was discharged on 10-5-1950. Thereafter two applications were filed in the Court below on 22-6-1950. The first one was an application under Section 151, Civil P. C. asking the executing Court to seb aside the sale which was held on 9-1-1950. The allegation made in the petition was that in view of the interim order for stay of further proceedings the sale was an illegal one and should be set aside.

The second application was under Order 21 R. 90, Civil P. C., seeking to set aside the sale on the ground of material irregularity and fraud in publishing and conducting the sale and consequent inadequacy of price. The first application was dismissed by the learned Subordinate Judge on 19-12-1950. The second application was also' dismissed on 15-1-1951. Against the order of the learned Subordinate Judge dismissing the application under Section 151, Civil P. C. the appellant moved this Court in revision giving rise to Civil Revision No. 534 of 1951. Against the order refusing to set aside the sale under Order 21, Rule 90, Civil P. C., the appellant preferred F.M.A. 55 of 1951.

2. I shall first deal with the Civil Revision Case. Mr. Banerjee appearing for the petitioner (the surety) has contended that as the 'ad interim' order for sale was brought to the notice of the Court before the sale had taken place, the Court had no authority to hold the sale & the sale that was held on 9-1-1950, must be regarded as illegal and must be set aside. Before I deal with the effect of a sale held under such circumstances, it is necessary to point out whether the present case is a fit one in which this Court will exercise its power of revision. I have stated the circumstances under which the order for sale came to be passed as also the facts which have happened after an order for sale was made by the Court below. The order for sale was made on 19-11-1949. On 23-11-1949, the executing Court directed the issue of a sale proclamation fixing the sale for 9-1-1950.

The petitioner must have known that the sale would take place on 9-1-1951. She did not however act with commendable diligence but ' waited till 22-12-1949, the day this Court closed for the Christmas holidays and an order for stay was obtained. It is true, as the learned Advocate suggests, that the necessary process 'fees were deposited in Court. The petitioner however did not take care to see whether the order for stay reached the Court below in proper time. She did not make move further in this matter till 9-1-1950. On that date an unverified petition was sought to be moved in the executing Court. No prior notice of the application was given to the decree-holders. It does not appear whether the petition itself was moved in Court. The petition was an unverified petition and naturally the executing Court was anxious to see whetherthe statements made in the petition were correct or not. The Court therefore directed the pleader for the petitioner to move the petition in the presence of the pleader for the decree-holders. Nothing further was done.

The sale took place on 9-1-1950. The highest bid which was offered by the decree-holders came up for acceptance on 25-5-1950. At that stage no suggestion was made before the Court that the bid should not be accepted as the sale itself was an illegal one. In the meantime the Rule which the petitioner had obtained from this Court was discnarged on 10-5-1950. The effect of the order discharging the Rule was that the order for sale was a valid and binding order. The petitioner filed the application under Section 151, Civil P. C., some time later.

In these circumstances Mr. Guha appearing for the opposite party has submitted that this is not a proper case in which this Court would exercise its revisional jurisdiction. The petitioner sought to invoke the inherent powers of the Court under Section 151, Civil P. C., with a view to having the sale set aside. In my opinion, the facts stated above sufficiently indicate that the petitioner has no just grievance. The order for sale which was challenged in the revision case and in which an 'ad interim' order was obtained was later on discharged. There was therefore no real justification for holding up the sale. In our opinion, this is not a fit case in which this Court should interfere in revision with the order complained of.

3. The above conclusion is sufficient for the disposal of this revision case. As the following question has been canvassed at some length, we may proceed to record our opinion on the point. Mr. Banerjee contended that the moment 'ad interim' order for stay of proceedings is made by a superior Court, the Court below in which the proceedings are pending becomes incompetent to exercise its jurisdiction in those proceedings. It is contended that the effect of an order for stay, even though uncommunicated, is to suspend the operation of the proceedings in the Court below. In support of this submission reference has been made to the case of --'Hukumchand Baid v. Kamalanand Singh', 33 Cal 927(B). In that case 'ad interim' order for stay of delivery of possession had been obtained from this Court but before the order was communicated to the Court below, the Court below had delivered possession to the decree-holders.

Thereupon a further Rule was obtained from this Court calling upon the decree-holder to show cause why the decree-holder should not furnish security. At the time of the hearing of the Rules both parties were content with the maintenance of the order for delivery of possession. The only question debated was whether the Court was competent to require security from the decree-holder. This Court directed that security be taken from the decree-holder, the possession being retained by him. In the course of their judgments their Lordships Woodroffe and Mookerjee JJ. both dealt with the effect of an Uncommunicated interim order for stay of delivery of possession. The observations made by the learned Judges in this behalf were therefore not necessary for the purposes of the actual order made by them.

The observations of Woodroffe J. are to be found at p. 934. The learned Judge was of the opinion that an uncommunicated order for stay of delivery of possession had the effect of rendering the delivery of possession itself as being in excess of jurisdiction. It was pointed out thatan interim order for stay of proceedings is not merely a prohibitory order addressed to a party but it is an order which takes away the power of the Court below to deliver possession, the Court below ceases to have authority to proceed further after a superior Court has made an interim order for stay of proceedings. In other words, the view of the learned Judge is that the subordinate Court which was entrusted with the duty of delivering possession loses jurisdiction the moment an order for stay of proceedings is made by a superior Court.

Mookerjee J. made similar observations at p. 944-45. The learned Judge observed that the delivery of possession was 'ultra vires' and illegal. The reason suggested was that the effect of the interim order was to arrest the execution proceedings, the property which was the subject-matter of execution being vested in the custody of the Court, the operation of the interim order retaining its full effect till it was discharged or vacated, as the case may be. The observations of the learned Judges to which I have adverted no doubt support the contention of Mr. Banerji but as these observations did not form the basis of their ultimate decision they are not binding on us.

4. Reliance was also placed by Mr. Banerjee on a later Bench decision of this Court in the case of --'Sati Nath Sikdar v. Ratanmani Naskar', 15 Cal LJ 335(C). In that case this Court had made an interim order for stay of proceedings. Before 'the 'order of this Court reached the Court below a telegram sent by a Vakil of this Court supported by an affidavit of the party concerned was filed in the Court below and a request was made to the Court below to stay its hands. The Court below refused to do so. Thereupon this Court was moved by the party who had obtained an order for stay for vacating the proceedings in the Court below since the order. In that connection this Court observed while cancelling the order of the Court below that the arms of this Court were long enough to reach a subordinate Court which does not obey an interim order made by this Court.

In that case the Court below had disobeyed the order of this Court in spite of being duly apprised of it. In the course of the same proceedings this Court as a superior Court recalled the order made by the Court below and set it aside. The facts of this case are entirely different. In this case an attempt is made not in the course of those proceedings in which the stay order was obtained but in collateral proceedings to have the order for sale vacated. The above Bench decisions of this Court did not directly decide the present question. It is thus not necessary to refer this matter to a Full Bench in the view which we take of this matter.

The earliest reported decision of this Court which has a bearing on this question is the case of--'Bisseswari Choudhurani v. Horo Sun-dar Majumdar', 1 Cal WN 226(D). In that case an ex parte order for stay of proceedings had been obtained and before the order was communicated the sale had taken place and the property had been purchased by a stranger to the decree. Thereupon the judgment-debtor started a suit to have the sale set aside. Norris and Macpherson JJ. refused to set aside the sale. The reason given by the Court for its decision was that an interim order for stay is in the nature of a prohibitory order and like all such orders takes effect on the communication of such order. It was observed that the execution proceeds under the direction of the Court whichmakes the decree and the executing Court has full authority to execute the decree. An order under Section 545 Civil P. C., 1882, which corresponds to Order 41, Rule 5, Civil P. C., 1908, does not cancel the order for sale nor does it purport to undo anything which it was doing. Its utmost effect is to stop further action in the direction of execution and it would only have that effect when it reaches the Court whose duty it is to obey it.

The reason for the decision therefore is that the executing Court retains its jurisdiction in spite of the making of an order by a superior Court for interim stay of proceedings. This is the principle which was later enunciated by Mitter and Biswas JJ. in the case of --'Jatis Chandra v. Kshirod Kumar' : AIR1943Cal319 . In that case a sale had already taken place. A stranger had bid at the sale but before the bid was accepted an application in revision was moved in this Court and an interim order was obtained from this Court staying acceptance of the bid. Thereafter the bid was accepted. In a later suit the sale was attacked as a nullity, the ground suggested being that in view of the order for stay the acceptance of the bid was in excess of jurisdiction and therefore there was no completed sale. Mitter J. who delivered the judgment of the Bench referred to the two lines of cases of this Court and other High Courts as regards the effect of communication or other-Wise of an order for stay and then stated as follows :

'In the view we are taking it is not 'necessaryto decide which of the aforesaid views is correct.' (Page 324).

Mr. Banerjee has contended that this passageshows that the observations made by the Benchsubsequent to the passage cited were 'obiter dicta',This however is not correct. The observationswhich followed were made in connection with aquestion raised before the Bench, namely, whetheran order for stay of proceedings takes away thejurisdiction of the Court below, irrespective ofthe question whether the order operates fromthe date of its passing or the date of its communication. Their Lordships did not decide thelast question but proceeded to make the observations which followed, on the assumption thatthe order for stay operated from the time itwas made. The observations which are relevantfor the present purpose are to be found later inthe same page (page 324).

The substance of the observations is that - in their Lordships' view the execution proceedings are not withdrawn the moment an order for stay is made, the matter covered by the stay order is only held in abeyance during the operation of the order for stay; an order passed by the Court in contravention of the stay order would be an irregular, or, at the most, an illegal exercise of the jurisdiction of the Court. In other words, the learned Judges drew a distinction between an entire absence of jurisdiction and illegality in the exercise of jurisdiction consequent on the making of an interim order for stay of proceedings. In their Lordships' view the effect of an interim order for stay of proceedings is that the jurisdiction of the subordinate Court is not entirely taken away? but only its exercise is restrained by the order for stay. The jurisdiction remains vested with the executing Court and is not taken away.

Any proceedings taken by the Court below In derogation of the order for stay, as the learned Judges point out, would clearly be an irregular or illegal exercise of jurisdiction, but would notbe 'ultra vires' as was suggested in --'Hukum-chand's case', (B). The observations made at page 324 were necessary for the purposes of the actual decision in that case, namely, whether the sale was a valid sale or not. They are the observations of a Bench of this Court and are binding on us unless we propose to differ from the same. We have given the matter our best consideration and we are clearly of opinion that the observations made by Mitter and Biswas JJ. in -- 'Jatis Chandra's case (E), are based on sound reasons and there is no ground to depart from the view taken by them. These are all the cases of this Court to which our attention was drawn by either side.

5. It remains lor us to consider the decisions of other High Courts to which our attention was drawn. Reference was made on behalf of the respondents to the case of --'Venkatachala patirao v. Kameswaramma' AIR 1918 Mad 391 (P.B.) (F), The opinion of the Pull Bench was delivered by Seshagiri Ayyar J. Tile learned Judge dissented from the view taken by this Court in --'Hukumchand's case (B)', and suggested that --'Hukumchand's case (B)', proceeded on the view taken in American cases and in American text books. The learned Judge observed that an uncommunicated order for stay does not operate to take away the power of a subordinate Court. It was held that an order made by a subordinate Court in ignorance of an interim order for stay made by a superior Court cannot be said to be an entirely invalid one. This decision supports the position taken on behalf of the opposite party.

The case of --'Parsotam Saran v. Barhma Nand' : AIR1927All401 . concerns the effect of an order for stay of proceedings on a sale which takes place thereafter. The Pull Bench drew a distinction between a decree-holder auction-purchaser and a stranger auction-purchaser. The Full Bench observed that a stranger auction-purchaser is absolutely protected and the sale at which he purchased cannot be attacked on the ground that it was held in contravention of an order for interim stay of proceedings. I may refer in passing to the following observations of Mukerji J. at p. 403 : 'Now 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.' This observation of Mukherji J. was approved by the Bench in --'Jatis Chandra's case (E)'. already cited. The observation clearly implies that an order for stay is in the nature of a prohibitory order and unless the Court below which is prohibited from doing certain things is apprised of the order, the subsequent proceedings in, execution and orders made in the course of that execution cannot be challenged as invalid. This case also supports the contention of the opposite party.

6. On behalf of the petitioner Mr. Banerjee also referred us to a decision of the Rangoon High Court in the case of -- 'Ma Ti v. Ma Thit', AIR 1933 Rang 416 (H). That case is clearly distinguishable. There a sale had been held by the Nazir in ignorance of an order made by the executing Court itself. The Bench decided that the Nazir was a ministerial officer and was the hand of the Court and as the Court itself hadstayed the sale, the action of the Nazir in holding the sale was invalid. In the course of the judgment the Bench was careiul to point out that they were not deciding the question as to the effect of an order for stay made by a superior Court 'viz-a-vis' the proceedings pending in a subordinate Court.

7. Mr. Banerjee also referred us to a decision of the Patna High Court in the case of --'Liakat v. Padampat', AIR 1951 Pat 130 (SB) (I). The Special Bench consisting of Reuben, Imam and Ramaswami JJ. were divided in their opinion. The majority view was in favour of the view taken in 'Hukumchand's case (B)'. Imam J. took a contrary view. As we have already stated, the view in 'Hukumchand's case (B)' is an obiter dicta' and has not been accepted by the later Bench decision in 'Jatis Chandra's case (E)'.

8. Reference was made to the provisions of Order 41, Rule 5, Civil P. C. The cases cited indicate a divergence of opinion as to the true construction of this Rule. A perusal of this rule does not in our opinion throw much light on the question before us. The rule does not state the effect of an order for stay. It only states that the appeal does not operate 'ipso jure' as a stay of proceedings and empowers the appellate Court after an appeal has been filed to direct stay of proceedings in certain circumstances.

9. We have held that even if an order for stay of proceedings granted by a superior Court operates from the date of its passing its effect is not to take away the jurisdiction of the Court below. In this view, it is not necessary to consider whether the communication should be formally made by the superior Court. In this case however, there was no formal communication of the order for stay by this Court in this ease. The petitioner did not file any verified statement or any affidavit in support of the fact that an order for stay had been passed by this Court, Communication must necessarily mean a communication on which the Court can act. In the absence of receipt of the order for stay or of an affidavit in support of the passing of the order, the Court was perfectly entitled to proceed on the footing that no order for stay had been made by this Court.

10. We may however point out that though the making of an 'ad interim' order for stay does not take away the jurisdiction of the Court below, the effect of the order is nevertheless, to render an order of the Court below in contravention of the order for stay is irregular or at the most illegal but not 'ultra vires'.

11. In our opinion, the order for stay is a direction to the Court below and if the direction is not communicated to that Court, any order made by it in ignorance of the direction is valid.

12. In the result this revision petition must fail and the Rule is discharged. There will be no order for costs.

13. Coming now to the appeal, the Court below has found that there was no inadequacy of price. In the Court below the appellant surety examined an engineer in support of the valuation of the property. The engineer's estimate was that the property was valued at Rs. 40,000/-. The cross-examination of the engineer clearly shows that he did not care to inspect the premises. He was not in a position to state the nature of the bricks or mortar employed in the building. He did not make the necessary measurement. It is difficult to say that the view taken by the Court below on this point is incorrect. In our opinion, the appellant has failed to provethat there was any inadequacy of price. On this finding the application under Order 21, Rule 90, Civil P.O. was rightly dismissed by the Court below.

14. The appeal accordingly fails and is dismissed with costs, hearing fee being assessed at three gold mohurs.

Guha Bay, J.

15. I agree.


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