Bibijan and Others vs Durga Bai and Another

S.C. Mohapatra, J.—Dispute in this civil revision relates to a house in Chatrapur town.

Undisputedly, the landlord decree-holder has obtained an order of eviction against the judgment-debtor u/s 7 of the Orissa House Rent Control Act and has initiated Execution Proceeding u/s 15 of the said Act against the judgment-debtor. Mother and minor brothers of the judgment-debtor (opposite party No. 2) are the petitioners in this civil revision which arises out of the said Execution Proceeding. Endeavour of the petitioners to continue as tenant of the house by filing an application objecting to the executability of the decree on the ground that the order of eviction is not against them having become unsuccessful, a suit has been filed by the petitioners in the Court of Subordinate Judge, Chatrapur registered as Title Suit No. 40 of 1986 for restraining the opposite party No. 1 decree-holder from executing the decree and from interfering with the possession of the plaintiffs alleging therein that they have acquired interest of monthly tenant under the Orissa House Rent Control Act from Sadhu Khan, the deceased husband of petitioner No. 1 and father of the other petitioners including the judgment-debtor. Temporary injunction with intention to continue in the house prayed for in the suit was refused by order dated 16-1-1987. Plaintiffs those of whom are minors of tender years have, however, been appointed as joint receivers in respect of the house subject to the condition that they would: deposit Rs. 20/- per month. After obtaining the order appointing them as receivers the third attempt to continue in the house was made by filing an application u/s 151, C.P.C. in the Executing Court to stay further proceeding in the Execution Case on the grounds amongst others that they have been appointed as receivers by a competent Court in respect of the suit-house. Executing Court having rejected the prayer in the impugned order this civil revision has been filed.

Stay of execution of a decree is provided for under Order 21, Rule 29, C.P.C. which requires that the suit and the execution proceeding are in the same Court and the decree-holder and the judgment-debtor are parties to the suit. See Shaukat Hussain alias Ali Akram and Others Vs. Smt. Bhuneshwari Devi (Dead) by Lrs. and Others, . Exercise of power under Order 21, Rule 29, C.P.C. to stay the execution of the decree would depend upon facts and circumstances of each case. Even in cases where the pre-requisites of Order 21, Rule 29, C.P.C. are satisfied, Court is not to grant stay liberally. In this Court the principles for exercise of such power have been settled in Judhistir Jena Vs. Surendra Mohanty and Another, (1986) 61 C LT 114; (Rauf Khan v. Sara Bibi) (1986) I Ori LR 183; (Pholi Dibya v. Idan Bibi) Mst. Kamroon Nisha Bibi and Others Vs. Yusuf Khan and Others, and (1986) 61 CLT 673 (Satyanarayan Verma alias Sharma v. Krushna Chandra Sahu). Where, however, the prerequisites under Order 21, Rule 29, C.P.C. are not satisfied, Court in deserving cases can exercise the inherent power u/s 151, C.P.C. In order to have uniformity of approach to the disputes, similar considerations as would be applied in exercise of power under Order 21, Rule 29, C.P.C. would also be applicable to exercise of judicial discretion u/s 151, C.P.C.

In the present case, petitioners did not claim independent title adverse to the decree-holder. Their short case is that they being tenants are protected u/s 6 of the Orissa House Rent Control Act and are not evictable by a specific order u/s 7 thereof. The said plea could not assist the petitioners in resisting the executability of the decree. The question having been prima facie held against the petitioner, balance of convenience is not in favour of the petitioners and the inherent power to stay the execution proceeding ought not to be exercised in favour of the petitioners.

Petitioners have been appointed as joint receivers in the suit in respect of the suit house. Since the order appointing the petitioners as receivers has not been challenged, I need not go into correctness of the said question. Be that as it may, the house is now custodia legis. Mr. Rahenoma, the learned counsel for the petitioners, submitted that possession of the Court through the receiver cannot be interfered with by the Executing Court and in that view the further proceeding ought to have been stayed

Mr, B. B. Ratho, the learned senior advocate appearing for the decree-holder opposite party No. 1, relied on a decision reported in Maharajadhiraj Sir Rameshwar Singh Bahadur Vs. Hitendra Singh, where it has been held that the mere fact that the decree-holder consented to the appointment of a receiver does not estop him from now seeking to enforce his decree by execution. The said observation was made in an application by the decree-holder for discharge of a receiver appointed in the execution case itself. This decision has been referred to by the Division Bench of this Court in a decision reported in Bholanath Naik and Others Vs. Krupasindhu Naik and Others, . While considering the question whether appointment of receiver operates as stay of execution or an injunction restraining the parties from executing the decree, the observation of the Patna High Court was referred to. The Patna decision, however, would have no application to the present case.

In Bholanath Naik and Others Vs. Krupasindhu Naik and Others, , it has been observed :

"It cannot be disputed that the appointment of a receiver operates as an injunction against the parties, their agents and persons claiming under them, restraining them from interfering with the possession of the receiver except by permission of the Court. The general rule is well settled that property in the hands of a receiver is exempt from judicial process, except of course to the extent permitted by the appointing Court........."

In view of the aforesaid dictum of this Court, there cannot be any doubt that the Executing Court cannot proceed with the execution without the permission of the Court appointing the receiver. Therefore, until permission is given in Title Suit No. 40 of 1986 to the decree-holder, the Execution Proceeding cannot continue,

Grant of permission by the Court appointing the receiver is to be based on judicial considerations. Following the principles of natural justice, the Court is to consider in such cases all the facts and circumstances and examine whether the , balance of convenience is in granting the permission or refusing the same taking into consideration whether the injury that is likely to be caused to the party if permission is granted would be irreparable. Mere fact that it has appointed a receiver would not be the sole consideration for refusing permission.

In the result, the civil revision is allowed and the further proceeding in the Execution Case is stayed till permission is granted by the Court appointing the receiver. No costs.