Calcutta High Court
Parul Mukherjee vs Gouri Biswas And Ors. on 2 July, 2001
Equivalent citations: (2001)3CALLT125(HC), AIR 2002 (NOC) 54 (CAL), 2001 A I H C 4322, (2001) 4 ICC 428, (2002) 1 CAL HN 708, (2001) 3 CALLT 125
JUDGMENT P.K. Samanta, J.
1. The plaintiff/petitioner filed Title Suit No. 362 of 1993 for eviction of the tenant/opposite parties under the provision of the West Bengal Premises Tenancy Act, 1956 (hereinafter called as the said Act) inter alia on the ground of reasonable requirement of the suit premises. The said suit was decreed on contest on 25th September, 2000. The plaintiff/ petitioner put the said decree into execution under Title Execution Case No. 34 of 2000 in the First Court of Civil Judge (Jr. Division) at Alipore. The tenant/opposite parties preferred an appeal being Title Appeal No. 339 of 2000 against the aforesaid judgment and decree of eviction on 24th November, 2000. On a stay petition filed by the tenant/opposite parties in the said Title Appeal the lower appellate Court by an order dated 27.11.2000 granted an interim stay of execution of the said decree till 30th January, 2001.
2. There is no dispute whatsoever that the writ for delivery of possession was issued by the executing Court in the aforesaid Execution Case No. 34 of 2000 and in execution of the said decree possession of the suit premises was delivered to the plaintiff/petitioner on 11.12.2000. It is also not in dispute that the interim order staying execution of the said decree of eviction as passed by the Court of appeal below in which the appeal against the said judgment and decree of eviction is pending was not communicated to the Executing Court. It was however, alleged that the learned Advocate for the appellants in the morning of 11.12.2000 received an information that the bailiff of the learned Court being armed with the writ for delivery of possession had come to the suit premises for delivering possession of the same to the plaintiff/petitioner. The said learned Advocate upon receipt of such information rushed to the locale and requested the bailiff not to execute the writ for delivery of possession as a stay order had been granted by the appellate Court on 27th November, 2000 and showed the bailiff the relevant papers and a plain copy of the said interim order of stay as passed in Title Appeal No. 339 of 2000. It was further alleged that the said bailiff also refused to accept any letter from the said learned Advocate stating the facts of interim stay as granted by the learned Court of appeal below as above. However, it was the specific case, of the tenant/opposite parties that the suit premises was under lock and key and the bailiff delivered possession of the suit premises to the decree holder/plaintiff/petitioner by breaking open the padlock.
3. In these state of affairs, the tenant/opposite parties filed an application under Section 151 of the Code of Civil Procedure in the aforesaid Title Appeal No. 339 of 2000 for restoration of the possession of the suit premises. The said application was contested by the plaintiff/decree holder/ petitioner and upon contested hearing the learned Court of appeal below allowed the said petition of the tenant/opposite parties by directing the decree holder/petitioner to restore back the vacant possession of the suit premises to the tenant/opposite parties. The said order for restitution dated 25th April, 2001 was challenged in this revisional applications.
4. In the face of the aforesaid facts and circumstances and on the question of delivery of possession It became necessary to decide whether such delivery of possession in Execution of the decree, inspite of the aforesaid interim order for stay of execution, but without the knowledge thereof by the executing Court, was liable to be restored back to the Judgment debtor. In other words, the question became important as to the effect of an uncommunicated stay order on the executing Court or the proceeding and/or the due execution of the decree.
5. The earliest case of our Court on the point in issue was reported in 1 Calcutta Weekly Notes 226 (Bessesswari Chowdhury v. Horro Sundar Mozumdar), (1896-97). In that case the sale had taken place before the order for stay reached the Lower Court and a stranger had auction purchased the property. The Court refused to hold that the sale was void and observed in the course of its judgment that an interim stay order passed by the Appellate Court was in the nature of a prohibitory order which took effect only on its communication to the Lower Court.
6. After Bessesswari Chowdhury's Case (supra) a different view was taken by our Court in the case of (Hukum Chand Bold v. Kamala Nand Singh, (1996) ILR 33 Calcutta 927. The Bench resided over by Woodroffe and Mookherjee, J.J. held that an unconditional order for stay of proceeding takes effect from the moment it is pronounced and not on or from that date, on which it is drawn up or communicated, and it suspends with immediate effect the power of the subordinate Court to carry on further the execution proceeding and the operation of the order is not postponed till it has been communicated to the subordinate Court, or to the party intended to be effected by it. Another Division Bench of our Court considered the long line of decisions on the point in the case reported in 1958 CLJ 293 (Gurupada Halder v. Subodh Gopal Base). In the said decision the Division Bench though did not make any pronouncement on the correctness or otherwise of the conflicting views expressed on the effect of an communicated stay order of the superior Court in the above two lines of cases but it noted that a full Bench of Lahore High Court in AIR 1949 Lah 108 (Karan All and Ors. v. Raja Ors.) and a Special Bench of Patna High Court in AIR 1951 Pat 130 (Liakat Mian v. Padampat Singhania and Ors.) had preferred to adopt the view taken in Hukum Chand's (supra) case.
7. The Supreme Court in the case (Mulraj v. Murti Rughunathji Mohoraj) took into consideration all the major decisions of the Calcutta High Court and other High Courts on the point expressing two different views as above. The Supreme Court in no uncertain manner held that the view taken by our High Court in the earliest decision in Bessesswari Chowdhury's (supra) case is the current one. It held as under:
"An order of stay in an execution matter is in our opinion in the nature of a prohibitor order and is addressed to the Court that is carrying out execution. It is not of the same nature as ah order allowing an appeal and quashing execution proceedings. That kind of order takes effect immediately it is passed, for such an order takes away the very jurisdiction of the Court executing the decree as there is nothing left to execute thereafter. But a mere order of stay of execution does not take away the jurisdiction of the Court. All that it does is to prohibit the Court from proceeding with the execution further, and the Court unless it knows of the order cannot be expected to carry it out. Therefore, till the order comes to the knowledge of the Court its jurisdiction to carry on execution is not affected by a stay order which must in the very nature of things be treated to be a prohibitory order directing the executing Court which continues to have jurisdiction to stay its hand till further orders. It is clear that as soon as a stay order is withdrawn the executing Court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been with drawn. The jurisdiction by the Court is there all along. The only effect of the stay order is to prohibit the executing Court from proceeding further and that can only take effect when the executing Court has knowledge of the order. The executing Court may have knowledge of the order on the order being communicated to it by the Court passing the stay order or the executing Court may be informed of the order by one party or the other with an affidavit in support of the information or in any other way. As soon therefore as the executing Court has come to know of the order either by communication from the Court passing the stay order or by an affidavit from one party or the other or in any other way the executing Court cannot proceed further and tf it does so it acts illegally. There can be no doubt that no action for contempt can be taken against an executing Court, if it carries on execution in ignorance of the order of stay and this shows the necessity of the knowledge of the executing Court before it jurisdiction can be affected by the order. In effect therefore a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further it is equally well settled that the injunction order not being addressed to the Court, if the Court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as It is addressed to the Court and prohibits it from proceeding further, as soon as the Court has knowledge of the order it is bound to obey it and if it is does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an order of injunction to a party and an order of stay to a Court, in both cases knowledge of the party concerned or of the Court is necessary before the prohibition takes effect. Take the case where a stay order has been passed but it is never brought to the notice of the Court and the Court carries on proceedings in ignorance thereof. It can hardly be said that the Court has lost jurisdiction because of some order of which it has no knowledge. This to our mind clearly follows from the words of Order XLI, Rule 5 of the Code of Civil Procedure which clearly lays down that mere filing of an appeal does not operate as stay of the proceedings in execution, but the appellate Court has the power to stay the execution. Obviously when the appellate Court orders stay of execution the order can have effect only when it is made known to the executing Court. We cannot agree that an order staying execution is similar to an order allowing an appeal and quashing execution proceedings. In the case where the execution proceeding is quashed, the order takes effect immediately and there is nothing left to execute. But where a stay order is passed, execution still stands and can go on unless the Court executing the decree has knowledge of the stay order. It is only when the executing Court has knowledge of the stay order that the Court must stay its hands and anything it does thereafter would be a nullity so long as the stay order is in force."'
8. In this case though it was not disputed that the Court executing the decree had no knowledge of the interim stay order passed by the learned Court of appeal below but it was alleged as stated here in before that the bailiff who came to execute the decree with the authority of the writ Issued by the order of the Executing Court was informed by the learned Advocate for the tenants/opposite parties about the aforesaid interim stay order at the time of executing the writ of delivery of possession. Such allegations have been denied by the plaintiff decree holder/petitioner. These disputed facts are not at all relevant for the present purpose. Because the Supreme Court in the said decision further observed in paragraph 11 of the said report as under :-
Though the Court which is carrying on execution is not deprived of the Jurisdiction the moment a stay order is passed, even though it has no knowledge of it, this does not mean that when the Court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the Court has knowledge of the order. We are of opinion that Section 151 of the Code of Civil Procedure would always be available to the Court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act under Section 151 and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so. Though, therefor the Court executing the decree cannot in our opinion be deprived of its jurisdiction to carry on execution till it has knowledge of the stay order, the Court has the power in our view to set aside the proceeding taken between the time when the stay order was passed and the time when it was brought to its notice. If it is asked to do so and it considers that it is necessary in the Interests of justice that the interim proceedings should be set aside. But that can only be done by the Court which has taken the interim proceedings in the Interest of justice under Section 151 of the Code of Civil Procedure provided the order is brought to its knowledge and a prayer is made to set aside the interim proceedings within a reasonable time. Otherwise the interim proceedings in our opinion are not a nullity and in the absence of such exercise of power by the Court executing the decree under Section 151 they remain good for all purposes."
9. The Supreme Court thus set at rest the conflict in views by laying down the proportion that the Court which is carrying on the execution is not deprived of the jurisdiction the moment the stay order is passed. This proposition further went to establish that the delivery of possession in execution of a decree in ignorance of a stay order by a Superior Court is neither ultra vires nor nullity. But the Court would always undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the Court has knowledge of the stay order. The Supreme Court in laying down the proposition as above emphasised on two things :- (a) the Court only which had taken the interim proceedings for execution, would undo that has been done to the party aggrieved and where the interest of justice so demands and (b) such exercise of power by the Court shall be under Section 151 of the Code of Civil Procedure.
10. In view of the proposition laid down as above the Court executing the decree would be entitled to set aside the proceedings taken between the time when the stay order was passed and the time when it was brought to it's notice if it considers that it is necessary to do so in the interest of justice and Section 151 of the Code is the only course for so doing. Because it is not a case of reversal of a decree which necessarily implies restoration of possession which was taken pursuant to a decree before it's reversal. Therefore, the plea that the Court has no inherent power to grant restitution of possession except in exercise of power under Section 144 of the Code of Civil Procedure is also not tenable. Section 144 in terms does not apply in a situation where the decree has not been reversed and the restitution of possession has not been sought for because of reversal of a decree in execution of which possession was delivered. It has also been consistently held that a Court has ample power under" Section 151 of the Code to order for restitution in cases not falling within Section 144 of the Code and where it is necessary for so doing in the interest of justice. Reference may be made to a few decisions of this Court, namely (Ramanath Karmakar v. Sheikh Asanulla), 35 CWN 483 (Rajjabali Khan Talukdar v. Fake Bibi and Ors.).
11. In view of the aforesaid Supreme Court decision it would be competent for the executing Court only to restore back possession to the judgment debtor in exercise of it's inherent power under Section 151 of the Code for doing justice to the parties. I am therefore of the opinion that the learned Court of appeal below acted illegally and with material irregularity in its exercise of jurisdiction in entertaining the said application of the tenant/opposite parties under Section 151 of the Code and also by making the impugned order thereon. I, therefore, set aside the impugned order and allow this revisional application.
12. This order of dismissal however will not prevention the tenant/ opposite parties from making a fresh application before the Executing Court under Section 151 of the Code of Civil Procedure for restoration of possession of the suit premises in his favour on the grounds aforesaid. If there be any application by the tenant/opposite parties as above then under no circumstances a plea would be allowed to be taken that pending disposal of the same by the Executing Court the above appeal shall not be taken up for disposal. On the contrary, if possible the above appeal should be disposed of as expeditiously as possible. It is needless to say that in the event of a fresh application as above by the tenant/opposite parties the executing Court would order for restitution if it considers necessary for so doing in interest of justice which would be determined upon consideration of all relevant facts and circumstances of this case.
This Revisional Application is thus allowed with the observation as above, and in the facts and circumstances as above without any order as to costs.
13. Application allowed