Ayodhya Singh and Another vs Board of Revenue and Others

Janardan Sahai, J.—A suit u/s 229B of U. P. Zamindari Abolition and Land Reforms Act was filed by the respondent No. 4, which was dismissed by the trial court. The respondent No. 4 filed an appeal before the Additional Commissioner. By order dated 11.5.1999, the Additional Commissioner, Gorakhpur Division, Gorakhpur, allowed the appeal on the basis of compromise and decreed the suit. An application for setting aside the order on the ground that it was ex parte and that the compromise was not signed by them was filed by the petitioners. The said application is still pending. During the pendency of the application, an order dated 7.8.1999 was passed by the Additional Commissioner by which he stayed the operation of the order dated 11.5.1999 passed in the appeal. The order dated 7.8.1999 was challenged by the respondent No. 4 before the Board of Revenue. The Board of Revenue by the impugned order dated 3.5.2000 allowed the revision and set aside the order dated 7.8.1999 on the ground that during the pendency of an application to set aside the decree, there was no power to grant interim relief. It directed the disposal of the application for setting aside ex parte order passed in the appeal. The order of the Board is under challenge.

Heard learned counsel for the petitioners, Sri S.L. Yadav, learned counsel for the respondent No. 4 and the learned standing counsel.

The learned counsel for the petitioners relied upon a decision of the Punjab and Haryana High Court in J.K. Chowdhury Vs. Ashis Benerji, in which during the pendency of application under Order IX Rule 13, C.P.C. the Court granted stay on certain conditions. He also relied upon a decision of the Apex Court in Kumud Lata Das Vs. Indu Prasad, , in which during the pendency of an application for setting aside the ex parte decree the Apex Court passed an interim order staying the execution of the ex parte decree by imposing certain conditions. In support of its view that during the pendency of an application for setting aside an ex parte order, no interim order could be passed, reliance was placed by the Board upon the decision in Jagdhari and Ors. v. Vth Additional District Judge, Azamgarh and Ors. Learned counsel for the respondents has given its correct citation as 1992 (2) AWC 1152. In that case, a suit for injunction was dismissed in default and application for restoration was filed which too was dismissed in default and an application for recall of that order was still pending. During the pendency of the application for restoration, an application for temporary injunction was filed and the trial court declined to grant temporary injunction. In this situation, it was held that no application for injunction was maintainable as there was no suit pending. The case is clearly distinguishable. In that case, the suit was dismissed in default thus amounting to refusal of the main relief of injunction. An injunction though temporary was again sought during the pendency of the application for restoration. The prayer made in that application was incidental to the main relief of injunction which stood refused when the suit was dismissed in default. In the present case, the prayer in the application for interim relief was to stay the execution of the compromise decree during the pendency of an application to set aside that decree on the ground that no compromise was entered into. The prayer for stay is based on a cause of action which has arisen as a result of the compromise decree and not precedent to the decree. The decision in the case of Jagdhari and Ors. v. Vth Additional District Judge, Azamgarh and Ors. is, therefore, not applicable.

If a suit were to be filed by the petitioner for setting aside the decree, the Court could grant stay under Order XXI Rule 29, C.P.C. In Bibijan and Others Vs. Durga Bai and Another, , the Orissa High Court has held that the consideration for grant of stay under Order XXI Rule 29, C.P.C. and those u/s 151, C.P.C. would be similar. There is no specific provision in the Code for grant of stay during the pendency of an application to set aside the decree. If the Legislature had made a provision for stay, the inherent powers could not be invoked, for in such a case the circumstances and conditions for grant of stay would be fettered by legislation. But that is not the case here. The provisions of Order XXI and Order XLI relating to stay of execution do not exhaust the cases in which stay can be granted. In Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, , the scope of inherent powers of the Court has been considered. Extract from paragraph 23 of that decision is quoted as follows :

"23. These observations have no bearing on the question of the Court''s exercising its inherent powers u/s 151 of the Code. The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties before it."

In Bahadur Lal Vs. Judges of the High Court , it has been held that stay of execution of the decree on application or leave to appeal to the Privy Council can be granted. In these circumstances, the power u/s 151, C.P.C. is wide enough can be well invoked to stay the execution of the compromise decree.

An objection was raised by the learned counsel for the respondents that the application for setting aside the order was barred by limitation. Learned counsel for the respondents states that the order deciding the appeal in terms of compromise was passed on 11.5.1999 and the application was made on 7.8.1999. It may be noted that in the application for setting aside the order, the case of the petitioners is that he had no information about the date fixed nor any compromise was entered into. However, the view taken by the Board of Revenue that no interim order could be passed does not appear to be correct.

In the result, the order of the Board of Revenue impugned dated 3.5.2000 is set aside only to the extent that it has set aside the interim order and held that there is no power to grant any interim order during the pendency of an application for restoration. The Additional Commissioner, Gorakhpur Division, Gorakhpur, is directed to dispose of the application under Order XLI Rule 21, C.P.C. expeditiously, if possible within a period of three months from the date a certified copy of this order is produced before him. Until the date of disposal of the said application, the status quo as exists today shall continue.

The writ petition is allowed.