Orissa High Court
Daitary Nayak vs Srikanta Mohapatra on 15 April, 1991
Equivalent citations: AIR1992ORI39, AIR 1992 ORISSA 39, (1991) 72 CUT LT 266
ORDER K.C. Jagadeb Roy, J.
1. Civil Revision No. 279 of 1991 as listed for final disposal. Mr. M. Patra, learned counsel appearing for the petitioner in C.R. No. 304 of 1991 appeared in the court and stated that he had preferred the C.R. No. 304 of 1991 against the same impugned order and if the both cases are not heard together, then the right of his client may be affected. Mr. B. H. Mohanty, learned counsel appearing for the petitioner in C.R. 279 of 1991 has no objection. Mr. S. K. Mohanty, learned counsel appearing in both the cases has no objection. On consent of both the parties, both the civil revisions are heard together.
2. Earlier one title suit bearing No. 17 of 1981 was filed in the court of the Munsif, Keonjhar where the present petitioner in C.R. 279 of 1991 was defendant No. 2. The said suit was filed under Section 6 of the Specific Relief Act, 1963 by the present opposite party No. 2 in C.R. No. 279 of 1991. The suit was decreed in favour of the present opposite party No. 1 the plaintiff in the said suit against which civil revision No. 721 of 1982 was preferred in this court and this court by the order dated 3-8-87 had dismissed the civil revision though observed that the trial court was not right in coming to its conclusion in regard to the property in Schedule A but nevertheless declined to interfere with the order invoking its jurisdiction under Section 151, C.P.C. The law is well settled that restoration of possession in a suit under Section 6 of the Specific Relief Act is subject to a regular title suit, and the person who has the real title or even the better title cannot therefore be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back the possession. The scope of such a suit is limited. Hence there is provision for the loosing party to claim declaration of his title and get recovery of possession.
3. Defendant No. 2 and other defendants of Title Suit No. 17 of 1981 filed two suits, one by defendant No. 2 in T.S. No. 17 of 1981 and the present pro forma opposite parties 2 and 3 bearing Title Suit No. 1 of 1989 and the other one by another brother of this defendant No. 2 who was made a defendant in Title Suit No. 17 of 1981 bearing Title Suit No. 78 of 1987 claiming his title to the same property as in Title Suit No. 1 of 1989. Both these suits were heard analogously and dismissed. Against that order, the present petitioner-plaintiff No. 1 in Title Suit No. 1 of 1989 had preferred a Title Appeal No. 3 of 1991 in the court of the District Judge, Keonjhar whereas the plaintiff in Title Suit No. 78 of 1987 filed Title Appeal No. 2 of 1991 in the same court against the same impugned judgment and decree.
4. It is worthwhile to mention that the plaintiff in Title Suit No. 17 of 1981 after confirmation of the decree in civil revision No. 721 of 1982, started a Executive case bearing No. 6 of 1988 in the court of the Munsif, Keonjhar to take delivery of possession and objection was filed under Section 47 of the C.P.C. by the present petitioner who as already stated was defendant No. 2 in the aforesaid Suit No. 17 of 1981 and an adverse order was passed against him. Against that order he preferred civil revision No. 876 of 1988 in this court and this court by the order dated 3-1-1990 stayed further proceeding Execution Case No. 6 of 1988 subject to depositing Rs. 250/- per month. Admittedly this amount was being deposited till 9-1-90 and ceased to be deposited after the civil revision came to an end. In the meanwhile an application bearing civil revision No. 96 of 1990 was filed in this court with a prayer to stay further proceeding of the Execution Case No. 6 of 1988 started to execute the decree passed in Title Suit No. 17 of 1981. At that time the suits in the trial court (T.S. Nos./1/ 89 and 78/87) were pending. This court passed the order staying further proceeding of the Execution case No. 6 of 1988 in the court of the Munsif, Keonjhar arising out of Title Suit No. 17 of 1981 by its order dated 11-5-1990. Thereafter, the suits were disposed of by the learned Subordinate Judge, Keonjhar and both the suits were dismissed. Appeals were preferred before the District Judge, Keonjhar which were numbered as Title Appeal No. 3 of 1991 (arising out of T. S. No. 1 of 1989) and Title Appeal No. 2 of 1991 (arising out of Title Suit No. 78 of 1987). An application has been made by the appellants in both the Title Appeals under Section 151, C.P.C. for stay of the Execution Case No. 6 of 1988 pending in the court of the Munsif, Keonjhar as the earlier order of stay passed by this court in C.R. No. 96 of 1990 ceased to operate on the conclusion of the civil revision. The District Judge, Keonjhar as an appellate authority allowed the petition slaying further proceeding in Execution Case No. 6 of 1988 (arising out of T. S. No. 17 of 1981) till disposal of the Title Appeals Nos. 2 and 3 of 1991 subject to depositing an amount of Rs. 5,000/- in cash by the petitioners in the court of the Munsif, Keonjhar. The appellants were further directed to deposit the defaulted amount till date (28-3-91) in the court of the Munsif, Keonjhar. He also directed the appellants-petitioners not to obstruct the opposite parties in repairing and plastering their adjoining undisputed house mentioned in the plaint as 'Mithalilal shop' and directed to put up the matter on 23-4-91 for removal of defects and hearing on the office note. By his order dated 26-3-91, this order was passed as a common order in both the Title Appeals. Against this order, both the revisions have been, filed.
5. In Civil Revision No. 279 of 1991, Mr. B. H. Mohanty, learned counsel appearing for the petitioner wants modification of the impugned order to the extent that the order would be passed only as a simple order of stay of the execution case No. 6 of 1988 and all other directions like depositing an amount of Rs. 5,000/ and the defaulted amount and not to obstruct the opposite parties etc. are to be struck of from the order on modification of the same as there is no basis for passing the same. That apart the order according to the petitioner in C.R. 279 of 1991 is confusing and not specific.
6. The learned counsel for the petitioner in C.R. No. 304 of 1991, Mr. M. Patra has, however, urged that the entire imugned order is liable to be quashed being without jurisdiction as the appellate authority has no jurisdiction to pass the impugned order staying operation of the Execution case started on the decree passed by another court in another suit. The decree in Title Suit No. 17 of 1981 being a lawful decree is not be stayed and the party in whose favour the decree is passed should not be deprived of the benefit of the decree. He relied on a decision reported in (1986) 1 Orissa LR 550 : (AIR 1987 Orissa 234); Mst. Kamroon Nisha Bibi v. Yusuf Khan in support of his contention.
7. The impugned order requiring deposit of Rs. 5,000/- and the defaulted amount is thoroughly confusing. Order 41, Rule 5, C.P.C. reads as follows :
"Order 41, Rule 5: Stay by Appellate court; (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree, but the appellate court may for sufficient cause order stay of execution of such decree.
(Explanation : An order by the Appellate court for the stay of execution of the decree shall be effective from the date of the communication of such order to the court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate court shall, pending the receipt from the Appellate court of the order for the stay of execution for any order to the contrary, be acted upon by the court of first instance.) (2) Stay by Court which passed the decree : Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the court which passed the decree may on sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under Sub-rule (1) or Sub-rule (2) unless the court making it is satisfied :
(a) that substantial loss may result to the party applying for stay of execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
(4) Subject to the provisions of Sub-rule (3) the court may make an ex parte order for stay of execution pending the hearing of the application.
(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in Sub-rule (3) of Rule 1, the court shall not make an order staying the execution of the decree."
The impugned order does not show if the amount of Rs. 5,000/- was required to be filed as security. Since the jurisdiction of the District Judge in passing the stay order is in question, this point now requires no examination unless it is found that the District Judge had jurisdiction to pass the impugned order. Order 41, deals with the appeals out of original decree and Rule 5 of Order 41 deals with power of stay by the appellate court. According to Sub-rule (1) to Rule 5 of Order 41, an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree, but the Appellate court may for sufficient cause order stay of execution of such decree.
8. For whatever has been stated above, the appellate court's authority is confined under Order 41, Rule 5(1) to stay the execution of a decree appealed from, for sufficient cause. Since the stay sought for before the appellate court was not the stay of execution of the decree appealed against, but the execution of the decree passed in another suit by another court namely the Munsif, Keonjhar in Title Suit No. 17 of 1981, the present appellate authority had no jurisdiction to pass an order of stay of the execution case started to enforce the decree in Title Suit No. 17 of 1981.
9. The next question raised by Mr. B. H. Mohanty, learned counsel for the petitioner in civil revision No. 279 of 1991 is that it is open to the appellate authority to pass an order of stay of an execution of decree passed in another suit in exercise of power under Section 151, C.P.C.
10. Rule 5 of Order 41, C.P.C. deals with stay of execution proceeding. This rule states that mere filing of an appeal against a decree or order by itself does not operate as a stay. Once a decree is passed, the party is entitled to the benefit of the decree unless the decree is set aside. On a very limited circumstance, the power to stay of the execution of the decree is permitted under Sub-rules (2) and (3) of Order 41, Rule 5. Rule 5(2) deals with power of stay by the court which passed the decree. Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the court which passed the decree may, on sufficient cause being shown order the execution to be stayed. Sub-rule (3) to Rule 5, however, deals with stay of execution by the appellate court. On the conditions required under Sub-rule (3) which provides as one of the conditions requiring security to be filed. Therefore, the Code of Civil Procedure has made specific provisions regarding the stay of execution of a case under Order 41, Rule 5 of the C.P.C. and the intention of the legislature is that the trial court or the appellate court cannot exercise the power of stay in no other circumstances except in the circumstances as under the provisions contained under Order 41, Rule 5, C.P.C.
11. Coming to the next question as to whether the appellate court in the facts of the present case would have stayed the execution proceeding taken out on the decree of another court under the inherent power, it is necessary to indicate the scope and ambit of powers contained in Section 151, C.P.C.
12. Section 151, C.P.C. is not a substantive provision conferring any right to get any relief of any kind. It is a mere procedural provision which enables a party to have proceedings of a pending suit conducted in a manner consistent with justice and equity. The aim of the Legislature in enacting the various provisions of the laws of procedure is also to serve the ends of justice. In so far as the matter in question in any particular case or topic falls within the ambit of the express provisions of the statute, the inherent powers of the court must, to that extent, be regarded as abrogated by the Legislature.
13. In Padam Sen v. State of U.P., reported in AIR 1961 SC 218, the Supreme Court expressed the principle in the following words (at p. 219 of AIR):
"The inherent powers of the court are in addition to the powers specifically conferred on the court by the Code. They are complementary to those powers and, therefore, it must be held that the court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of these powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature."
14. The matter of granting stay by the court which passed the decree or by the appellate court, the intention of the legislature is indicated under Order 41, Rule 5, C.P.C. It is, therefore, not open to the appellate court to exercise inherent power to stay execution of the decree which is beyond its power under Order 41, Rule 5, C.P.C.
15. A court must have jurisdiction over the proceeding, before it can exercise any inherent power. No court has any inherent power to inquest itself with a jurisdiction not conferred on it by law.
16. A Full Bench decision of the Patna High Court reported in AIR 1978 Patna 339; Bajrank Rai v. Ismail Mian referred to a paragraph of the judgment of the Supreme Court reported in AIR 1964 SC 993 which stated thus (at p. 347 of AIR 1978 Patna 339) (FB):
"It is common ground that the inherent power of the court cannot override the express provisions of the law. In other words, if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates."
In the present case there is implied prohibition that the appellate court cannot stay execution of the decree passed otherwise than in exercise of power contained under Orderc 41, Rule 5, C.P.C. and as such the power of the appellate court to make an order of stay of the execution case passed in another suit not covered under Order 41, Rule 5, C.P.C. is an impliedly barred.
17. In another case reported in AIR 1965 SC 1144 (Ramkarandas Radhavallabh v. Bhagwandas Dwarkadas) the Supreme Court while considering the scope of exercise of inherent power quoted the previous decision of the Supreme Court reported in AIR 1962 SC 527 (534) which held thus:
"The inherent powers are to be exercised by the Court in every exceptional circumstances for which the Code lays down no procedure."
It is more so because the inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. This was the view of Justice J. C. Shah reported in AIR 1962 SC 527 (Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal). The Hon'ble Judge also held thus in the said case (at p. 537 of AIR):
" xx xx I am unable to hold that civil courts generally have inherent jurisdiction in cases not covered by Rules 1 and 2 of Order 39, Civil Procedure Code to issue temporary injunctions restraining parties to the proceedings before them from doing certain acts. The powers of the courts, other than the Chartered High Courts, in the exercise of their ordinary original civil jurisdiction to issue temporan injunctions are defined by the terms of Section 94(1)(c) and Order 39, Civil Procedure Code. A temporary injunction may issue if it is so prescribed by rules in the Code. The provisions relating to the issue of temporary injunctions are to be found in Order 39, Rules 1 and 2, a temporary injunction may be issued only in those rules, and normally the civil courts have no power to issue injunctions by transgressing the limits prescribed by the rules." .
By analogy, therefore, in the present case, the appellate court would not have passed the order of stay, staying execution of a decree which did not come strictly within the scope and ambity of Order 41, Rule 5, C.P.C. in exercise of its inherent power. No court has any inherent power to invest itself with a jurisdiction not conferred on it by law.
18. For whatever has been stated above, the appellate court has no authority or jurisdiction to pass the impugned order of stay with or without conditions. The impugned order, therefore, is liable to be vacated and is accordingly set aside.
19. In the result, the civil revision No. 279 of 1991 is accordingly, dismissed and civil revision No. 304 of 1991 is allowed, but in the circumstances, there shall be no order as to costs.