Patna High Court
Bankim Chandra And Ors. vs Chandi Prasad on 30 April, 1956
Equivalent citations: AIR1956PAT271, AIR 1956 PATNA 271
JUDGMENT Ahmad, J.
1. This appeal by the judgment debtors is directed against the order dated 1-9-1955, passed by the executing Court refusing to accept the contention raised by the judgment debtors that the sale held in the proceeding on 16-8-1955, is void and as such should be annulled.
2. The facts leading to this appeal are as follows: The plaintiffs respondents obtained a decree for Rs. 16,320/- against the appellants on the basis of a handnote. Against that decree an appeal, was filed by them on 6-4-1953, which was registered in this Court as First Appeal No. 123 of 1953.
In the meantime the plaintiff decree-holder put the decree under execution in Execution Case No. 24 of 1953, & the prayer made in that execution proceeding was for the attachment and sale of a two storied building bearing Municipal Holding No. 551 in Ward No. 2 situated in Mohalla Pathar Chapati Bazar Madhopur in Madhopur Municipality within the district of Santal parganas. Thereupon on 28-7-1953, an application for stay of the execution proceeding was made in this Court on behalf of the judgment debtors. The learned. Registrar on hearing the parties made the following final order on 5-10-1953:
Heard learned Advocate:
The order of ad interim stay is made absolute on appellant's furnishing security to the satisfaction of the Court below within three months from the date of this order, failing which this order of stay shall stand automatically vacated and the petition rejected".
It is not denied that the appellants in compliance with this order furnished security to the satisfaction of the Court below. Therefore in view of the order passed on 5-10-1953, the execution proceeding had to remain stayed. Unfortunately thereafter on 22-11-1954, First Appeal No. 128 of 1953 stood dismissed for non-compliance of a peremptory order for the payment of Rs. 124/1/- as printing cost. This, therefore, led to an application for restoration of the appeal by the appellants and this Court on hearing the parties restored the same by its order dated 11-5-1955. That order read as follows:
"Having perused the affidavit filed on behalf of the petitioners and also the counter-affidavit on behalf of the respondent, and having heard counsel for both the parties, we are satisfied that this application should be allowed and the order of dismissal of the first appeal should be set aside and First Appeal No. 128 of 1953 should be restored to file. This order is subject to the condition that the petitioners pay a sum of Rs. 64/- as costs to Mr. Jamuna Pd. Chaudhary, within three days from this date.
We grant the appellants one week's time to file the printing cost of Rs. 124/1/- otherwise First Appeal No. 128 of 1953 will stand dismissed without. further reference to a Bench". The appellants in pursuance of this order deposited the printing cost as directed on 13-5-1955.
3. In the meantime it appears that on the dismissal of the First Appeal No. 128 of 1953 on 22-11-1954, the decree-holder respondent revived the execution case which as a result of the order passed on 5-10-1953, was stayed and in the course of that the property was put on sale.
In those circumstances on 2-8-1955, the appellants put in a petition before the executing Court submitting therein that in view of the restoration of First Appeal No. 128 of 1953 on 11-5-1955, all the ancillary orders passed therein including the one made on 5-10-1953, for the stay of execution had revived and, therefore, the Court should not allow the execution proceeding or sale to proceed any further. The learned Subordinate Judge on hearing the parties in regard to it, however, passed the following operative order on 2-8-1955.
"The sale will remain on hammer up till 16-8-1955. In the meanwhile the J. Dr. may produce the stay order, if any".
In pursuance of this order, one of the appellants Srimati Mayabati Devi moved an application in the High Court on 4-8-1955, praying that "the order dated 5-10-1953 be restored or fresh stay be granted. This application appears to have been heard on 11-8-1955, and on this date the learned Registrar passed the following order on that application.
"Heard learned advocate. Pending the final hearing of this application let there be an order of ad interim stay so far as delivery of possession proceeding in the Court below is concerned".
It is obvious that this order referred to the stay of delivery of possession though in fact the prayer made in the application dated 4-8-1955, filed by the petitioner in First. Appeal No. 128 of 1953 was not for the stay of delivery of possession but for the stay of sale. The mistake perhaps arose due to certain confusion made in the course of the hearing of the application. The result was that when this order was brought to the notice of the executing Court on 12-8-1955, it referred the matter back to the High Court for further clarification by its order of that date which read as follows:
"Copy of order No. 24/D. 11-8-1955 in P. A. No. 128 of 1953 of the Hon'ble High Court, Patna, allowing ad interim stay in this execution case (M, Ex. No. 24/53) so far as delivery of possession is concerned received. In this execution case no question of delivery of possession arises inasmuch as this is an execution of money decree for realisation of decretal amount only. Write to the Hon'ble H. C. accordingly".
4. This order unfortunately could not be placed before the learned Registrar before 16-8-1955, till when the sale under the order dated 2-8-1955, passed by the executing Court was to remain on hammer. Therefore, on 16-8-1955, an application was again. filed on behalf of the judgment debtors in the executing Court drawing its attention to the order passed by the High Court on 11-8-1955, and renewing their prayer that the sale should not be held in view of that order. The executing Court on hearing the parties on that also did not stay the sale and passed the following order which is dated 16-£-1955.
"Mayabati Devi J. Dr. files a petition praying that the order for sale of the whole property be recalled on the grounds mentioned in the petition. Heard. As there is no order of the Hon'ble H. C. to stay the execution proceeding and sale, the prayer cannot be allowed. If she brings a stay order, the sale will not be confirmed".
Presumably the aforesaid order was passed because the fourteenth day of sale as fixed in the sale proclamation was expiring on that day with the result that the sale was held and some auction bid was also accepted. Thereafter on 18-8-1955, the order of the Subordinate Judge passed on 12-8-1955, seeking clarification from the High Court came up for orders before the learned Registrar. At that stage the learned Registrar, on hearing the parties passed the following order:
"By consent of the parties, put up the stay matter for final hearing after 10 days. Heard Mr. Chaudhary and read the letter of toe Court below. Let the sale be also stayed ad interim pending the final hearing of the application".
It was unfortunate that even at that time none of the parties brought to the notice of the learned Registrar the fact that sale had already been held on 16-8-1955. The consequence was that the learned Registrar under the impression that sale had not been held passed an order concerning the stay of sale alone.
This last order of the High Court passed on 18-8-1955, was placed before the executing Court on 31-8-1955, on which date a petition was also again filed there on behalf of one of the judgment debtors putting therein all the facts and explaining how by mistake the order passed by the learned Registrar on 11-8-55 could come to relate with regard to the stay of delivery of possession only & not with regard to the stay of sale also.
The specific prayer made therein was that in view of the order of stay passed on 5-10-1953, which, according to the judgment-debtors, revived, on the restoration of First Appeal No. 128 of 1953, and also in view of the order of stay passed on 11-8-1955, the sale held on 16-8-1955, should be considered as void and as such should be annulled. The Court on a consideration of the entire matter and on hearing the parties passed the following order on 1-9-1955:
"Copy of the Hon'ble High Court's order No. 25 dated 18-8-1955 in P. A. No. 128/53 issuing order of ad interim stay of sale put up. The sale has already been knocked down on 16-8-1955 poundage fee filed by the D. Hr. (A. P.). Inform the Hon'ble Court. Order accordingly. Pending further order the sale will not be confirmed as already ordered on 16-8-1955".
The judgment-debtors being dissatisfied with the aforesaid order have now come in appeal to this Court.
5. In my opinion, the appeal should be allowed. In other words, I think that the learned advocate for the judgment debtors is right in his submission that the stay order passed in First Appeal No. 128 of 1953 on 5-10-1953, by the learned Registrar revived on 11-5-1955, on the restoration of the first appeal after its dismissal for default in the meantime, and also that the order of stay passed by the learned Registrar on 11-8-1955, in fact the dismissal of the first appeal on 22-11-1953, fell related to the stay of sale and not only to the stay of delivery of possession and, therefore, it was by sheer mistake that the order on that date came to relate only with regard to the stay of delivery of possession.
Therefore, in face of these orders relating to the stay of sale, the executing Court had no jurisdiction to hold the sale on 16-8-1955, which was done by it under the wrong impression that the order of stay passed on 5-10-1953, fell along with the dismissal of the first appeal on 22-11-1954, and did not again revive on 11-5-1955, when the same was restored and also that the other order of stay dated 11-8-1955, related to the stay of delivery of possession only, as referred to therein, and not to the stay of sale also, as submitted before it on behalf of the judgment-debtors.
6. The view that on the restoration of a suit or appeal, which in the meantime stands dismissed for default, all ancillary orders passed therein also revive gets full support from the principles laid down in Veeraswami v. Ramanna, 1935 Mad 365 (AIR V 22) (PB) (A); Jia Bai V. Joharmull Bothra, 1S32 Cal 858 (AIR V 19) (B); Nayudamma v. Sivaraju Dharmachand, 1943 Mad 515 (AIR V 30) (C); M. M. B. Catholios v. M. p. Athanasius, 1954 SC 526 (AIR V 41) (D) and Saranatha Ayyangar v. Muthiah Moopanar, 1934 Mad 49 (AIR V 21), (E). It is true that there is another line of decisions also as those in Balaraju Chettiar v. Masila-mani Pillai, 1930 Mad 514 (AIR V 17) (FB) (F); Protap Chandra v. Sarat Chandra, 1921 Cal 101 (AIR V 8) (G) and Ram Chand v. Pitam Mal, 10 All 506 (H), wherein the view taken on the facts of those cases are, however, distinguishable and each one of them relates to the effectiveness of the order of attachment before judgment passed in a suit where the suit itself has been dismissed and is decreed thereafter in appeal only.
In those circumstances the Court relying on the provisions of law laid down in R, 9 of Order 38, Civil P. C., held that after the dismissal of the suit the attachment before Judgment did not continue, and, therefore, it was not available to the plaintiff on the decretal of the suit in appeal. That, in my opinion, is fully supported by the working of Rule 9. That reads:
"Where an order is made for attachment before judgment the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed."
This, as it appears from it, clearly lays down that the attachment before judgment is to lose all its force once the suit is dismissed. This rule of law cannot apply to a case where a suit on dismissal for default is itself revived, and, therefore, the learned advocate appearing for the respondent could not place any authority contrary to this view and those which he relied upon related to cases which fell in line with those in 1930 Mad 514 (AIR V 17) (PB) (F), 1921 Cal 101 (AIR V 8) (G) and 10 All 506 (H).
7. Nest it was contended on behalf of the respondent that the order of stay is not an order which may be called an ancillary order. In my opinion, this on the face of it, is unsustainable. It is well obvious from the entire scheme of law laid down in the Code of Civil Procedure that interlocutory orders like one for stay are nothing but ancillary orders and they are all meant to aid and supplement the ultimate decision arrived at in the main suit or appeal. Therefore, I hold that once a suit or appeal dismissed for default is restored by the order of the Court, all ancillary orders passed in the suit or appeal before its dismissal also revive and operate since that date with all their legal implications unless there is any other factor on the record or in the order passed to show to the contrary.
In this case, however, there is no such matter for consideration. That being so, on this ground alone it has to be accepted that the sale held on 16-8-1955, in the face of the order of stay passed on 5-10-1953, which stood revived on 11-5-1955, was one without jurisdiction and is void.
8. The other point also is equally forceful. On the facts brought to our notice it is clear that the order which the learned Registrar meant to pass on 11-8-1955, was one for the stay of sale and not for the stay of delivery of possession though by mistake what was incorporated therein related only to the stay of delivery of possession. This contention finds full support from the different petitions filed in the Court and on the records of the case there is no reason made out which can justify us not to accept the facts stated in them. In that view of the matter also, the sale held on 16-8-1955, cannot be allowed to stand. The mistake, as pointed out above, which arose in the order of the learned Registrar on 11-8-1955, was due to the mistake on the part of the Court itself. And it is a well established rule of law that the order which operates is one which the Court decides to pass and not one which is clearly proved to have been dictated as a result of some mistake. In this case, as already stated, the applications filed by the judgment-debtors and other facts on the record clearly establish that the order which the learned Registrar on 11-8-1955, decided to pass was the stay of sale and not the stay of delivery of possession. And, therefore, that order has to be read in that corrected form and the case has to be disposed of on that basis.
9. For the reasons stated above, I think the appeal should be allowed. But in the circumstances of the case there will be no order as to costs.
Misra, J.
10. I agree.