Patna High Court
Babu Maharaj Bahadur Singh vs Mr. A.H. Forbes on 11 May, 1922
Equivalent citations: 70IND. CAS.394, AIR 1922 PATNA 382
JUDGMENT Dawson Miler, C.J.
1. Tins is a petition on behalf of Maharaj Bahadur singh asking us to declare that an order for the sale of certain property made by the District Judge of Purnea on the 10th November last was illegal and ultra vires or to pass such other orders as we may think fit. The property was ordered to be sold in the Executing Court. The petitioner was claiming the property as his own and, therefore, not subject to execution in a suit against the trustee. The question for decision upon the point whether the property was liable to sale or not in execution depended upon whether this particular property belonged to the respondent either as part of the trust property of his father or whether it devolved upon him through ins mother. His objection to having the property sold was set aside by the Executing Court and the property was ordered to be sold.
2. An appeal from that order was lodged in this Court and an application was made which was dealt with here on the 5th November when an order was made that if the petitioner paid into Court the decretal sum by a certain date the property should not be sold, and the sale in the event of the sum nut being paid into Court, was ordered to take place on the 14th November. Subsequently, a further application to this Court was made and that order was amended, as it turned out, which the Court was not aware of before, that the 14th November was a public holiday and so the sale which had been adjourned by the previous order was ordered to take place on the nth November instead. That order was communicated to the learned District Judge in whose Court the property was about to be sold. In the meantime, the petitioner instituted a suit against the decree-holder claiming this property as his own, and as a preliminary measure in that suit he asked for an interim injunction restraining the decree-holder from selling the property. The learned Subordinate Judge of Purnea, before whom the application came granted a temporary injunction restraining the decree-holder from selling the property. On the 10th November an application was made to the District Judge in execution praying that the order for the sale of the property should be suspended in consequence of the nterim injunction made by the Subordinate Judge. What happened on that application was that the learned District Judge had both the order of the Subordinate Judge granting the injunction and the order of the High Court which, so far as its terms went, might be taken as being an order in the nature of a direction to sell the property upon a particular day, and being uncertain as to which of these two orders he ought to obey he refused to stay the sale of the property.
3. It is quite clear that the order of the High Court was in no sense in the nature of a mandatory order directing the property to be sold in any event. It was merely an order staying the sale of the property for a certain time until the petitioner had had an opportunity of paying the money into Court. The sale of the property had already been ordered and the matter before the High Court simply was whether the sale should take place on a certain day or whether that sale should be adjourned. It was never intended by the order of the High Court that if the sale should be either postponed or set aside for some other reason that the property nevertheless was to be sold. It is quite clear, therefore, that the learned District Judge, although from the information he had, which I understand was conveyed by telegram, cannot be blamed for having not fully appreciated the order of the High Court, nevertheless fell into error in considering what he really ought to have done; and it is quite obvious that had he fully appreciated the nature of the order of the High Court he never would, in the face of; the injunction against the decree-holder, have ordered the property to be sold. In fact, by so doing he would have been lending himself directly to an attempt by the decree-; holder to disobey the order of the Court and to commit a contempt of Court.
4. What subsequently happened was that the sale took place and the petitioner subsquently applied under the provisions of the Civil Procedure Code and paid the decretal amount into Court and has the sale set aside. The money has not yet been taken out of Court by the decree-holder, but we are asked to declare that the sale should be set aside and the parties restored to exactly the same position as if the sale had never taken place. It is contended on behalf of the decree-holder that the learned District Judge in refusing to stay the sale was acting within his jurisdiction and acting regularly within the exercise of that jurisdiction and that, therefore, we have no power to interfere with his discretion in the matter. What the learned Judge was in fact asked to do was in the peculiar circumstances of the case, to exercise his inherent jurisdiction and order the sale not to take place on the ground that the decree-holder had been by injunction restrained from proceeding further by way of sale with the execution of his decree. It may be quite true that the learned District Judge was not personally bound by the order of injunction, and indeed the Subordinate Judge could not have issued any injunction upon the Court of the District Judge, but the powers which the learned District Judge was asked to exercise were the inherent powers which he undoubtedly had of taking action in the particular circumstances of the case, and we, as a Court having superintendence over that Court, are also, I think, entitled to exercise our powers of superintendence over the District Judge; and if we think that he has clearly gone wrong, inadvertently it is true, assisting one of the parties in what amounts to a contempt of the order of the Court, then I think we are clearly entitled to take such steps as may be necessary to put the parties in the same position as if no contempt of Court had taken place. It was, in my opinion, clearly a contempt of Court on the part of Mr. Forbes, the decree-holder, to insist upon the property being sold after the injunction had been passed by the Subordinate Judge. This is not the place or the time to consider whether the Subordinate Judge was right or wrong in the order he made restraining the sale. That is a matter which may be considered hereafter when the decree-holder appears to show cause against the rule for the injunction, but that injunction having been granted I think that this Court is bound to see that the order of the Court is carried out and that the parties against whom the injunction has been granted should not gain any advantage by reason of having acted in a way entirely contrary to that order. The result is that, in my opinion, we ought to pass an order declaring that the sale "which took place on the nth November should be set aside and treated as of no effect and that the money paid into Court by the petitioner in order to have that sale set aside should be restored to him. The result is that the present application is allowed and the sale will be formally set aside as not binding upon the parties and the money already paid into the Executing Court will be paid back again to the petitioner. I think the petitioner is entitled to his costs of this application. Hearing fee two gold mohurs.
Mullick, J
5. I agree. I think we are acting in the exercise of our inherent powers in declaring the order of the District Judge to be wrong in the circumstances. The only proper course in this case is to place the parties in the position in which they were before that order was made.