Ayyammal and Another vs Thangavelu Padayachi

Krishnaswami Nayudu, J.—This is an appeal by the plaintiffs in O.S. No. 395 of 1947 on the file of the Court of the District Munsiff of

Turaiyur against the appellate order in A.S. No. 887 of 1948, directing them to re-deliver possession of a house to the respondent in this appeal.

The appellants who are plaintiffs in O.S. No. 395 of 1947 obtained a decree for possession of a house on the 8th March, 1948. The defendant-

respondent filed an application E. A. No. 194 of 1948 on the 15th April, 1948, for stay of execution of the decree pending his filing an appeal and

obtaining an order of stay from the appellate Court. Notice of this application was served on the pleader for the plaintiffs, and this application, after

several adjournments and after objection raised on behalf of the plaintiffs, was finally heard on the nth June, 1948, when stay of execution of the

decree was granted by the District Munsiff of Turaiyur pending the obtaining of stay from the appellate Court. The decree in O.S. No. 395 of

1947 was apparently transmitted to the District Munsiff''s Court of Ariyalur for execution, and it is not shown to me how the decree was

transmitted for execution to a different Munsiff altogether. However, it is not material for a consideration of the points raised in this case. On 15th

June, 1948, the appellants filed an execution petition in the Court of the District Munsiff of Ariyalur for recovery of possession of the suit house in

execution of the decree without bringing to the notice of that Court the order of stay passed on the nth June, 1948, by the Court which passed the

decree. A delivery order was made on that date and the warrant for delivery of possession was executed on the 19th June, 1948. Plaintiffs

recovered possession of the property. Oh the 21st June, 1948, the respondents filed their appeal in the District Court of Tiruchirapalli and applied

for stay of the lower Court''s decree, and after interim stay was granted a report was called for on the objection of the appellants that in fact the

property had been taken possession of in execution, and on the strength of the report of the Commissioner the District Court made the final order

on the 28th July, 1948, whereby the stay granted by that Court dated the 29th June, 1948, was made absolute with regard to the portion not

delivered, viz., one room. In other respects the petition was dismissed, as it was found from the report of the Commissioner that excepting one

room the rest of the property was delivered over to the appellants. The respondent filed an application E. A. No. 231 of 1948, in the District

Munsiff''s Court of Ariyalur under Sections 47, 144 and 151 of the CPC praying that the Court may be pleased to set aside the order of delivery

dated the 19th June, 1948, and order re-delivery of the property: The learned District Munsiff of Ariyalur dismissed the petition observing that if at

all, a case was made out for contempt of Court rather than for re-delivery. As against that order A.S. No. 887 of 1948 was filed by the

respondent and the learned Sub-ordinate Judge of Tiruchirapalli allowed the appeal and directed re-delivery. This appeal is against the order of the

learned Subordinate Judge.

The learned Counsel for the appellants contends that no appeal lay from the order of the District Munsiff of Ariyalur in E. A. No. 231 of 1948

as it did not come under any of the provisions, viz., Sections 47, 144 and 151 of the Code. The learned Counsel urges that it is not a matter

relating to execution, and as such it would not come u/s 47, nor was it an application u/s 144 as there is no '' restitution. The lower appellate Court,

held, relying on (Sahu) Nand Kishore Vs. Shadi Ram and Others Superior Bank, Ld., Muzqffarnagar v. Budh Singh AIR 1934 All. 698 and

Mulraj v. Buramal ILR (1931) Lah. 602, that such an application could come within the scope of Section 47 of the Civil Procedure Code. In those

cases it was held that where a sale takes place in contravention of the express direction of Court, the Court has inhere at power to set aside the

sale suo motu. It was also held that an application to set aside the sale held in contravention of a stay order is, as between parties to the suit, an

application u/s 47 of the Civil Procedure Code. I am of opinion that it cannot be said that an application to direct re-delivery of a property delivery

of which was ordered in execution of a decree could be said to be not as one relating to the execution of a decree. In any event the application is in

my view maintainable u/s 151 of the Civil Procedure Code.

The next contention is that the order directing delivery of possession on the 15th June, 1948, by the District Munsiff of Ariyalur was in ignorance

of the stay order passed by the District Munsiff of Turaiyur in E.A. No. 194 of 1948 and that there was nothing to show that the order of stay of

the Turaiyur Court had been communicated to the Ariyalur Court, and in the absence of communication orders passed in ignorance could not be

held to be illegal or void. For this position the learned Counsel relied on the Full Bench case in Kasaribada Venkatachelapati Rao Vs. Maddipatla

Kameswaramma alias Kamakshamma, There the question referred for opinion of the Full Bench was as follows:

Where subsequent to an interim order for stay of execution made by the appellate Court without notice to the decree-holder but before its

communication to the Court of First Inastance, an order for attachment has been made by the latter Court, is the order of attachment void and

ineffectual as having been made without jurisdiction ?

The learned Judges of the Full Bench held that the attachment would not be void or ineffectual and would be perfectly legal. In this case the stay of

execution was made with notice and the order for delivery of possession was made at the instance of the appellants who must be deemed to have

been aware of the stay granted by the Turaiyur Court, they having been parties to the application represented by counsel who took part in the

proceedings, and it could not therefore be said that they were unaware of it. Having been aware of the order of stay, to apply for execution as if

there was no stay would amount to a conduct which cannot be approved by any Court. Further, it appears to me that the appellants practised a

fraud on the Court by failing to disclose the information to the Court and asking for execution, having been aware of the stay already granted by the

Court which passed the decree. I do not think that an order obtained under these circumstances could be allowed to stand, and the Court had

perfect jurisdiction to vacate such an order. To allow such a state of things would be to encourage practices whereby orders of Court are made

ineffective by conduct of parties.

It is further contended by the learned Counsel for the appellants that the order dismissing in effect the application for stay of execution filed

before the appellate Court pending disposal of the appeal excepting in respect of a room, would be a bar to the executing Court in Ariyalur to

order re-delivery of possession, and further it was the duty of the respondent to have brought it to the notice of the appellate Court when the

application for stay of execution was filed about the fact of delivery having been made and asked for appropriate direction from the appellate

Court itself. What the appellate Court was concerned with was whether an application for stay of execution of the decree pending disposal of the

appeal could be granted and when it was pointed out the appellate Court must have felt that there was nothing to stay and therefore must have

dismissed the application. The proper procedure for the respondent was therefore to have gone to the Court which made a wrong order in

ignorance of the order of stay to have it corrected by vacating the same and directing re-delivery. I think the order of the District Court dismissing

the application for stay of execution cannot be said to be a bar to directing re-delivery of possession.

In the result, the appeal is dismissed with costs. Leave refused.