Orissa High Court
Sudam Charan Sahu vs Sasmita Sahoo And Others ... Opposite ... on 31 January, 2023
Author: Krushna Ram Mohapatra
Bench: Krushna Ram Mohapatra
HIGH COURT OF ORISSA: CUTTACK
C.M.P No.756 of 2022
(In the matter of an application under
Article 227 of the Constitution of India, 1950)
*******
Sudam Charan Sahu ... Petitioner
Mr. Bidesh Ranjan Behera, Advocate
-versus-
Sasmita Sahoo and others ... Opposite Parties
Mr. Susanta Kumar Dash, Advocate
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Date of Judgment:31.01.2023
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CORAM:
JUSTICE KRUSHNA RAM MOHAPATRA
JUDGMENT
KRUSHNA RAM MOHAPATRA, J.
1. This matter is taken up by virtual/physical mode.
2. Order dated 12th July, 2022 (Annexure-5) passed by learned Senior Civil Judge, Angul in CS No.24 of 2004 is under challenge in this CMP, whereby an application filed by the Petitioner under Order VII Rule 10 CPC has been rejected.
3. As would reveal from the averments made in the CMP, Opposite Party Nos.1 to 3 filed an application under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act of 1925') before learned District Judge, Dhenkanal for grant of probate of Will, CMP No.756 of 2022 Page 1 of 17 which was registered as Test Case No.14/20 of 2003. Subsequently, after filing of the written statement therein, the probate proceeding became contentious and was transferred to the Court of learned Senior Civil Judge, Angul and registered as CS No.24 of 2004. The Petitioner has been arrayed as Opposite Party No.2 in the said proceeding. Needless to mention here that the present Petitioner along with predecessor of Opposite Party Nos.6 to 9, namely, late Sudhir Kumar Sahu have already filed their respective written statements opposing the probate.
4. Partition Suit in CS No.99 of 2002 is also pending between the parties to the probate proceeding before learned Senior Civil Judge, Angul. After death of the Plaintiff in the suit for partition, the Petitioner filed an application to be transposed as Plaintiff in the said suit. He also filed an application to club up both the suits, i.e., CS No.24 of 2004 and CS No.99 of 2002. Both the applications were dismissed by learned Senior Civil Judge, Angul, vide order dated 29th April, 2022. Assailing the same, the Petitioner filed CMP No.526 of 2022 and by order dated 21st June, 2022, this Court directed stay of further proceedings of CS No.24 of 2004. When the interim order was continuing, the Petitioner filed an application under Order VII Rule 10 CPC with a prayer to return the plaint to the Opposite Party Nos.1 to 3 (Petitioners therein) to be filed before the competent Court, i.e., learned District Judge, Angul. Learned Senior Civil Judge, without taking into CMP No.756 of 2022 Page 2 of 17 consideration that interim order staying further proceeding of C.S. No.24 of 2004 was in vogue, took up and rejected the petition under Order VII Rule 10 CPC on the same day of filing, i.e., 12th July, 2022 (Annexure-5).
5. Learned counsel for the Petitioner, Mr. Behera, assails the order under Annexure-5 on two counts. Firstly, learned Senior Civil Judge, Angul could not have taken up the petition under Order VII Rule 10 CPC for adjudication when an interim order of stay of further proceeding of CS No.24 of 2004 was in vogue. Secondly, learned Senior Civil Judge, Angul lacks jurisdiction to entertain a contentious probate proceeding filed (CS No.24 of 2004) under Section 276 of the Act of 1925. Mr. Behera, learned counsel for the Petitioner submitted that the direction in the interim order dated 21st June, 2022 was not addressed to the parties to the proceeding, but to the Court to arrest further proceeding of CS No.24 of 2004. Thus, even if an application under Order VII Rule 10 CPC was moved by the present Petitioner, it was the duty of the Court to restrain itself from passing any judicial order thereon. It should have waited till either vacation of the interim order or disposal of CMP to entertain the application. In support of his case, Mr. Behera, learned counsel relied upon the case of Mulraj Vs. Murti Raghonathji Maharaj; reported in AIR 1967 SC 1386, wherein at para-8, it is held as under:-
"8. We are of opinion that the view taken in Bessesswari Chowdhurany case [(1896-97) 1 CWN 226] is the correct one. An order of stay in an CMP No.756 of 2022 Page 3 of 17 execution matter is in our opinion in the nature of a prohibitory order and is addressed to the court that is carrying out execution. It is not of the same nature as an 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 withdrawn. The jurisdiction of 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 if 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 its 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 CMP No.756 of 2022 Page 4 of 17 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 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 ignorance thereof. It can hardly be said that the court has lost jurisdiction because of some order of which has no knowledge. This to our mind clearly follows from the words of Order 41 Rule 5 of the Code of Civil Procedure which clearly lays down that mere filling of an appeal does not operate as stay of proceedings in execution, but the appellate court has the power to stay the execution. Obviously when the appellate court orders the stay of execution the order can have affect 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." (emphasis supplied)
6. It is contended that the interim order passed by this Court in CMP No.526 of 2022 was produced before the Court of learned Senior Civil Judge, Angul, which was reflected in the order dated 26th June, 2022. Thus, learned trial Court CMP No.756 of 2022 Page 5 of 17 had knowledge of the interim order passed by this Court when it entertained the application under Order VII Rule 10 CPC and rejected it. He further relied upon the case of Manohar Lal (dead) by LRs. Vs. Ugrasen (dead) by LRs.and others, reported in (2010) 11 SCC 557, wherein it is held as under:-
"29. In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the court is of no consequence as it remains a nullity."
He, therefore, submits that the impugned order is a nullity as it was passed during subsistence of the interim order staying further proceeding of the suit in CMP No.526 of 2022.
7. The next contention raised by Mr. Behera, learned counsel for the Petitioner was that when a subsequent special law is repugnant to or inconsistent with an earlier general law, the special law will prevail over the general law. Referring to the Bengal, Agra and Assam Civil Courts Act, 1887 (herein after referred to as 'the Act of 1887'), is a general law and Act of 1925 is a special law. Section 286 read with Section 288 of the Act 1925 specifically prohibits the district delegates not to grant any probate in a contentious probate proceeding. The aforesaid provision of the Act 1925 is repugnant to and is inconsistent with Section 23 of the Act 1887, which empowers the High Court to authorize the District Judge to transfer and dispose of proceedings under the Indian Succession Act including contentious cases as regards the grant of probate and/or letter of CMP No.756 of 2022 Page 6 of 17 administration. The Act of 1925 being the subsequent special law has an overriding effect over the provisions of the Act 1887. In support of his submission, he relied upon para-12 of the case of Maya Mathew Vs. State of Kerala and others, reported in (2010) 4 SCC 498. He, therefore, submitted that in view of the aforesaid case law, the provision of Section 23 of the Act of 1887 becomes inoperative, otiose and redundant insofar as it relates to adjudication of contentious probate proceeding .
7.1 He further submitted that the impugned order under Annexure-5 is cryptic and non-speaking. As such, the same is not sustainable and is liable to be set aside.
8. Mr. Dash, learned counsel for Opposite Parties refuted the contentions raised by Mr. Behera, learned counsel for the Petitioner. It was his contention that undisputedly the application under Section 276 of the Act of 1925 was presented before Court of learned District Judge, Dhenkanal, under whose administrative control, the Court of learned Senior Civil Judge, Angul was functioning then. When the proceeding became contentious, it was transferred to the Court of learned Senior Civil Judge, Angul. The Petitioner being aggrieved by order dated 29th April, 2022, filed CMP No.526 of 2022 in which this Court by its interim order dated 21st June, 2022, stayed further proceedings of CS No.24 of 2004 till the next date. He also contended that the interim order was in vogue when the impugned order under Annexure-5 was passed. But the CMP No.756 of 2022 Page 7 of 17 interim order does not in any way affect the validity of the impugned order under Annexure-5. He emphatically argued that during subsistence of the interim order staying further proceedings of the suit, power of the Court is not restricted to entertain an application, which does not affect the proceedings of the suit. He relied upon the case of Bijay Kumar Agarwalla and others Vs. Ramakanta Das, reported in 64 (1987) CLT 540, wherein it is observed that the stay of the proceedings of the suit implies that the Court should not touch the trial of the suit. Adjudicating an application under Order VII Rule 10 CPC does not affect the trial of the suit more particularly when it is rejected. The Petitioner having moved the application under Order VII Rule 10 CPC is estopped to raise the issue touching the jurisdiction of the Court to entertain such an application. He further submitted that in the meantime, CMP No.526 of 2022 has already been disposed of vide order dated 18th July, 2022 setting aside the order dated 29th April, 2022. Thus, by the time the present CMP was moved the CMP No. 526 of 2022, in which the interim order was passed, had already been disposed of. He, therefore, submitted that learned Senior Civil Judge, Angul has committed no error in rejecting the application under Order VII Rule 10 CPC during subsistence of the interim order staying further proceeding of the CS No.24 of 2004.
9. He further submitted that Sections 265, 286 and 288 of the Act of 1925 leave no room of doubt that whenever there is CMP No.756 of 2022 Page 8 of 17 contention in an application under Section 276 of the said Act, the district delegate loses jurisdiction to proceed with the matter and he should return the application to the applicant to be presented before the concerned District Judge. It appears that the Petitioner has confusion in his mind to the effect that learned Senior Civil Judge, Angul holds the position of a district delegate under the Act, 1925. In fact, Section 265 of the Act, 1925 provides for appointment of Judicial Officer by the High Court (those which are not established by Royal Charter) to act for the District Judge as delegate with previous sanction of the State Government. Explanation to Section 18 of the Odisha Civil Courts Act, 1984 (hereinafter referred to as 'the Act, 1984') reiterates the same. In the instant case, the application under Section 276 of the Act, 1925 was not presented before the district delegate, but it was presented in the Court of learned District Judge, Dhenkanal, which is certainly not a district delegate. The said application became contentious subsequently. Accordingly, learned District Judge, Dhenkanal in exercise of power under Section 18 (3) of the Act, 1984 transferred the proceeding to the Court of learned Senior Civil Judge, Angul, as it was under his administrative control at the relevant time. A transferee Court is denuded of the power to entertain an application under Order VII Rule 10 CPC to return the application.
9.1 He further submitted that Act of 1887 was applicable to the State of Odisha which was repealed by Act, 1984. Sub-
CMP No.756 of 2022 Page 9 of 17section (2) of Section 25 of the Act of 1984 clearly states that all such notifications, jurisdictions and power conferred under the Act, 1887 deemed to have been issued/conferred and published under the Act of 1984. It is his submission that no district delegate has yet been appointed in the State of Odisha. Thus, learned District Judge was well within its power to transfer the instant contentious probate proceeding to Senior Civil Judge, Angul in terms of the Notification No.159A dated 22nd November, 1961. It being a notification under Section 23 of the Act of 1887, the same is deemed to have been made under Section 18 of the Act of 1984. As such, learned Senior Civil Judge, Angul has jurisdiction to entertain a contentious application under Section 276 of the Act of 1925. He further submitted that Indian Succession Act, 1865 was repealed by Act of 1925, but the same is inconsequential with regard to validity of the notification of this Court as stated above. In support of his submission, he referred to the case of TVS Motor Company Ltd. Vs. State of Tamil Nadu and others, reported in (2019) 13 SCC 403 in which reliance was placed on a decision reported in Secretary of State for India in Council -Vs- Hindustan Cooperative Insurance Society Ltd, reported in AIR 1931 PC 149. Further, the impugned order is not cryptic and non- speaking, as alleged. Learned trial Court referring to the provision under Section 18(3) of the Act, 1984, dismissed the application, which is legal and justified.
CMP No.756 of 2022 Page 10 of 1710. The issue with regard to power of the Court to entertain an application in the nature of Order VII Rule 10 CPC during subsistence of an interim order of stay of this Court requires to be answered first, as it involves the competence of learned trial Court to entertain the application in the situation, as aforesaid during continuance of the interim order passed by this Court. If it is answered in favour of the Petitioner then this Court should not delve into next issue in the instant CMP.
11. Admittedly, this Court, vide order dated 21st June, 2022 in CMP No.526 of 2022, while issuing notice in the matter, directed that there shall be stay of further proceedings in CS No.24 of 2004 till the next date. The matter was next posted on 12th July, 2022. Admittedly, the impugned order was passed when the aforesaid interim order of stay was in vogue. Further, it appears that learned trial Court had knowledge of the aforesaid interim order passed by this Court, when it entertained the application under Order VII Rule 10 CPC, as would reveal from the order sheet of CS No.24 of 2004. Vide order No.299 dated 27th June, 2022, learned trial Court recorded as under:-
"..... Advocate for the Defendant files memo along with CC of orders dated 21.06.2022 passed in CMP 526/22/IA No.598/22. In IA 598/22, Hon'ble High Court has directed that there shall be stay of further proceeding in CS 24/2004 till the next date, i.e., 12.07.2022. Hence, in view of the order dated 21.06.2022 in CMP 526/22, the case CS 24/04 is stayed. Put up on 29.06.22 awaiting intimation & hearing on pet."CMP No.756 of 2022 Page 11 of 17
Thus, the question that arises for consideration is as to whether the Court was denuded of the jurisdiction to entertain an application under Order VII Rule 10 CPC when further proceeding of the suit has been stayed. The position of law is no more res integra in view of the ratio in the case of Sri Bijay Kumar Agarwalla (supra). While discussing the legal position, this Court held as under:-
"4. The solution to the controversy regarding maintainability centres round the question what is the meaning and import of the order of stay further proceedings in the suit passed by the revisional Court. If the order is construed to mean stay of all further proceedings in the suit no matter whether it relates to hearing of the suit or any other collateral matter, then it has to be held that the learned Subordinate Judge took the correct view in the matter. If on the other hand, the order of stay means only stay of hearing of the suit and does not affect jurisdiction of the trial Court which is in seisin of the suit to pass orders in collateral matters, then the application under Order 38, Rule 5 filed by the petitioners before the Court below was maintainable. The point has been considered by different Hugh Courts and there seems to be divergence of opinion amongst them. While the Madras High Court in the case of Chidambaram v. Subramanian [A.I.R. 1953 Mad.
492.] , Madhya Pradesh High Court in the case of Madanlal Agarwal v. Smt. Kamlesh Nigam [A.I.R. 1975 M.P. 132.] , Mysore High Court in the case of Saburao Vithalrao Sulunke v. Madarappa Presappa Debbennavar [A.I.R. 1974 Mysore 63.] , and the Bombay High Court in the case of Khemraj Ratanlal Sancheti v. Vasant Madhaose Vyavhare [1981 Mh. L.J. 200.] , have taken the view that the trial Court retains its jurisdiction to pass interlocutory orders for the purpose of keeping the proceedings alive or for preserving the subject-matter of the dispute or the for protecting the interest of the parties to the suit during pendency of the stay order passed by the appellate or revisional Court, the Patna High Court in the case of Motiram Roshanlal Coal Co. (P) Ltd. v. District Committee, Dhanbad [A.I.R. 1962 Pat. 357.] , held that an order of stay passed by a superior Court CMP No.756 of 2022 Page 12 of 17 becomes effective immediately after it is passed and it has the effect of suspending the power of the lower Court to continue the proceedings in the case. Any order passed by the lower Court in spite of the order of stay of further proceedings is without jurisdiction. It is necessary to point out here that in the case before the Patna High Court the order passed by the lower Court in contravention of the order of stay of further proceedings was one appointing a commissioner. As such, the order directly related to hearing of the suit and was not one relating to a collateral matter. On the other hand, the cases considered by the Madhya Pradesh and Mysore High Courts arose directly out of applications made under Order 38, Rule 5 of the Code as in the present case. In the case of Chidambaram v. Subramanian [A.I.R. 1953 Mad.
492.] , the Division Bench of the Madras High Court considered the question whether it was open to the trial Court to make a reference to arbitration in the suit during pendency of the order of stay of further proceedings granted by the superior Court. Justice Venkatarama Aiyar speaking for the Court answered the question in the affirmative. I have carefully perused all the decisions referred to above. With respect, I would agree with the view taken by the learned Judges of the Madras, Mysore, Madhya Pradesh and Bombay High Courts holding that the lower Court retains its jurisdiction to consider and pass orders in matters which are collateral or which may be protective or which would be for the purpose of keeping the lis alive, even during subsistence of the order of the superior Court directing stay of further proceedings in the suit. But the Court should take care to ascertain that the subject matter in the petition does not touch the trial of the suit which has been stayed by the superior Court. To hold otherwise may in many cases work out injustice inasmuch as for every collateral matter the parties will be compelled to approach the appellate or revisional Court though such a matter may not be within the ambit and scope of appeal or revision pending before the superior Court. To give an instance, when an appeal or revision is filed against an interlocutory order, the matter dealt with in that order is the subject matter in appeal or revision as the case may be. The application relating to the collateral matter may have ho connection with the appeal or revision. In such cases also the party will be compelled to approach the appellate or revisional Court if it is held that in view CMP No.756 of 2022 Page 13 of 17 of the stay order the trial Court is denuded of his jurisdiction to piss any order in the suit. On the aforesaid analysis, I would hold that the learned Subordinate Judge was not right in holding that in view of the order of this Court directing stay of further proceedings in the suit the petitioners' application under Order 38, Rule 5 of the Code filed before him was not maintainable." (emphasis supplied)
12. On a close reading of the observation made by this Court in Sri Bijay Kumar Agarwalla (supra), it appears that this Court discussing divergent views of different High Courts accepted the view of Madras High Court, Madhya Pradesh High Court, Mysore High Court and Bombay High Court while disagreeing with the view taken by the Patna High Court. It is in no unambiguous terms held by this Court that trial Court retains its jurisdiction to consider and pass orders in matters which are collateral or which may be protective or which would be for the purpose of keeping the lis alive even during subsistence of the order of the superior Court directing stay of the proceedings in the suit. But the Court should take care to ascertain that the subject matter in the petition does not touch trial of the suit, which has been stayed by the superior Court. The said view has been reiterated by this Court in case of Basanta Manjari Samal Vs. Rupakanta Sahoo and others in CMP No.127 of 2017 decided on 28th February, 2017.
12.1 Further, in the case of Mulraj (supra), Hon'ble Supreme Court held that an order of stay of further proceeding is addressed to the Court and prohibits it from proceeding further, as soon as the order comes to its knowledge. It is CMP No.756 of 2022 Page 14 of 17 bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity.
12.2 In view of the ratio in Sri Bijay Kumar Agarwalla (supra), Basanta Manjari Samal (supra) and Mulraj (supra), it is clear that adjudication of a petition, which is likely to affect trial of the suit or to take away the jurisdiction of the Court to try the suit, cannot be entertained when further proceeding of the suit is stayed. Mr. Dash, learned counsel for the Opposite Parties vehemently argued that when further proceedings of the suit is stayed, the Court should stay its hands in the matter of trial of the suit only. Such a contention is not sustainable as by entertaining such an application, learned trial Court has ventured to delve into the maintainability of the suit/ proceeding and its continuance before the said Court when further proceeding of the suit was stayed. Mr. Dash, learned counsel further argued that when the application filed by the Petitioner under Order VII Rule 10 CPC has been rejected, it neither affects further proceeding nor is it in violation of the interim order of this Court. Such a contention is equally unsustainable, inasmuch as, learned trial Court is denuded of the power to entertain such an application which involves maintainability of the suit before the said Court, when an interim order of stay of the suit was operating. If it does so, then all proceedings taken after the knowledge of the order would be a nullity as held in Mulraj (supra). As CMP No.756 of 2022 Page 15 of 17 such, learned trial Court has committed an error in entertaining an application under Order VII Rule 10 CPC when an interim order of stay of further proceeding of the suit was in operation. True it is that, the application under Order VII Rule 10 CPC was filed during subsistence of the aforesaid interim order, but in all fairness learned trial Court should have waited to entertain such application after the interim order is either vacated or exhausted. Thus, the impugned order under Annexure-5 is a nullity.
13. In view of the observation made herein above, I am of the considered opinion that the issue with regard to merit of the petition under Order VII Rule 10 CPC should not be gone into in this CMP keeping it open to be decided by learned trial Court, if moved.
14. As submitted by Mr.Dash, learned counsel for contesting Opposite Parties that CMP No.526 of 2022 has already been disposed of in the meantime; thus the interim order passed therein is no more in force. As such, there is no impediment on the part of the learned trial Court to entertain the application filed by the Petitioner under Order VII Rule 10 CPC afresh in accordance with law.
15. Accordingly, the impugned order 12th July, 2022 (Annexure-5) passed in CS No.24 of 2004 is set aside and the CMP is allowed to the aforesaid extent with an observation that if moved by the Petitioner, learned trial Court shall do well to consider and dispose of the petition under Order VII Rule 10 CPC afresh CMP No.756 of 2022 Page 16 of 17 in accordance with law giving opportunity of hearing to the parties concerned. In the circumstances, there shall be no order as to costs.
Urgent certified copy of the judgment be issued on proper application.
(KRUSHNA RAM MOHAPATRA) JUDGE s.s.satapthy High Court of Orissa, Cuttack 31st January, 2023 CMP No.756 of 2022 Page 17 of 17