Brij Mohan vs Chhaju Ram, etc.

This judgment will dispose of Civil Revisions Nos. 92, 93, 94 and 100 of 1990 since common question of law and fact arise for determination therein.

Reference to the relevant facts has been made from Civil Revision No, 92 of 1990 for resolving the question of law. Keshav Ram owned 1 / 2 share in land measuring 39 Kanals 16 Marias situated in the revenue, estate of Siwana-Bawal. He sold his share of Mahabir Parshad and Ashok Kumar vide sale deed dated July 13,1982, for Rs. 42,500/-. Chhaju Ram filed a suit for possession by way of pre-emption which weas registered as Suit No, 521 of 1982. He claimed superior right of pre-emption on the ground that he was the vendor''s father''s brother''s son. The suit was decreed by the Subordinate Judge 1st Class, Rewari vide judgment and decree dated September 8, 1984, on payment of Rs. 48,123/-. The vendees challenged the judgement and decree of the Subordinate Judge in Civil Appeal No. 252 of 1984. The appeal was fixed for arguments on May 21, 1985, on which date the counsel for the vendees/ appellants (hereinafter referred to as the ''vendees'') made a statement that he had no instructions to appear and pursue the appeal. The appeal was dismissed by the appellate Court for non-prosecution vide order dated May 21, 1985. an application for restoration and re-admission of the appeal was filed on the ground that the vendees challenged the vires of the Punjab Pre-emption Act in the apex Court through various writ petitions. The same came up for motion hearing on April 26, 1985 and the following order was passed:--

"Issue Rule Nisi.

Pending notice there will be ex parte stay as prayed for. To be tagged on with connected matters." .

On May 1,1985, the Deputy Registrar (Judl.) of the apex Court conveyed the interim order dated April 26, 1985 to the District Judge, Narnaul. The pre-emptors in execution of the decree for possession by pre-emption got possession of the land decreed in their favour and an entry to this effect was recorded in the rapat roznarncha dated October 2,1985. The vendees moved an application before the apex Court for taking action under the Con- tempt of Court Act against the respondents (pre-eniptors) in the writ petitions in the apex Court for obtaining possession of the land in violation of the stay order granted by it. The contempt application which was registered as Civil Contempt Petition No. 46193 of 1985 in Writ Petition Nos. 4591-93 of 1985 was dismissed with the following order:--

"There is no substance in this contempt petition at all. From the material placed before us it is clear that possession was already taken long before the stay order was communicated to the lower Court. The contempt petition is therefore dismissed,"

The re-adrnission of the appeal was sought on the ground that on the date when the counsel for the vendees made a statement that the had no instructions to prosecute the appeal on their behalf, further proceedings in the appeal had been stayed by the apex Court and the appellate Court seized of the appeal could not proceed with the appeal in view of the stayorder granted by the apex Court. The appellate Court, on the basis of the evidence produced before it, came to the conclusion that the stay order dated April 26, 1985 was not communicated to it either on the date when the counsel made the statement pleading that he had no instructions to prosecute the appeal or at any time prior thereto and after so holding it rejected the application for re-admission of the appeal and this order is under challenge in the revision petition.

The learned counsel for the petitioner submitted that the order dated April 26,1985 passed by the apex Court was communicated to the appellate Court seized of the appeal and finding to the contrary recorded by the latter js erroneous. He further submitted that the order of stay issued by the apex Court became operative the moment it was made and in support of his submission relied upon Karam Ali v. Raja, AIR 1949 Lah 108 (FB); and Bhupinder Singh v. Commissioner, Jullundur Division, Jullundur, AIR 1967 P&H 354.

There is no substance in the submissions made. The possession was delivered to the respondents/pre-emptors on October 2, 1985.- The writ petitioners before the apex Court (appellants in appeal before the appellate CourtJ moved the apex Court for initiating contempt proceedings agaisnt the respondents/pre-emptors in these revision petition for taking possession of the land in violation of the stay order issued by the apex Court. The contempt application was rejected by the apex Court with a firm finding that the possession was taken by the respondents/ pre-emptors before the stay order was conveyed to the lower Court. In the light of the finding arrived at by the apex Court, it is not open to the petitioner to contend that the slay order dated April 26,1985 passed by the apex Court was communicated to the appellate Court before the date of dismissal of the appeal on the basis of the statement of the counsel for the appellants that he had no instructions to prosecute the appeal. It appears that the order of the apex Court was not conveyed to the appellate Court seized of the appeal on the date it was dismissed for non-prosecution. The findings arrived at by the appellate Court that the order staying further proceedings in the appeal was not conveyed to it prior to May 21, 1985, the date on which the appeal was dismissed, is a pure finding of fact based upon evidence and not open to challenge in revision. I have aiso examined the record and find that the finding so recorded by the appellate Court is correct. The submission of the learned counsel for the petitioner that the stay order becomes operative the moment it is made is not correct in law. The rule of law laid down in Karam All''s case (AIR 1949 Lah 108) (FB) (supra) and Bhupinder Singh''s case (AIR 1967 P&H 354) (supra) is no more a good law in view of the amendment in Rule 5 of Order 41 of the CPC by the Amendment Act 104 of 1976. An explanation has been added to sub-rule (1) of Rule 5 to provide that an order for stay of execution made by the appellate Court operates only from the time it is communicated to the executing Court, there was a conflict of decisions amongst the various High Court on the question whether execution proceedings held by a Court after passing of an order of stay but before communication thereof to lower Court are valid. The conflict was resolved by the apex Court in Mulraj Vs. Murti Raghonathji Maharaj, , wherein it was held thus (at Pp. 1388-89 of AIR):

"8. We are of opinion that the view taken in Bissesswari Chowdhurany''s case,(1896-97) 1 Cal WN 226, is the correct one. An order of stay in an execution matter is in our opinion in the nature of a prohibitory order and is addressed to the court that is carrying out execution. It is not of the same nature as an order allowing an appeal and quashing execution proceedings. That kind of order takes effect immediately it is passed, for such an order takes away the very jurisdiction of the court executing the decree as there is nothing left to execute thereafter. But a mere order of stay of execution does not take "away the jurisdiction of the court, all that it does is to prohibit the court from proceeding with the execution further, and the court unless it knows of the order cannot be expected to carry it out. Therefore, till the order conies to the knowledge of the court its jurisdiction to carry on execution is not affected by a stay order which must in the very nature of things be treated to be a prohibitory order directing the executing court which continues to have jurisdiction to stay its hand till further orders. It is clear that as soon as a stay order is withdrawn, the executing court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been withdrawn. The jurisdiction of the court is there all along. The only effect of the stay order is to prohibit the executing court from proceeding further and that can only take effect when the executing court has knowledge of the order. The executing court may have knowledge of the Order on the order being communicated to it by the court passing the stay order or the executing court may be informed of the order by one party or the other with an affidavit in support of the information or in any other ''way. As soon therefore as the executing court has come to know of the order either by communication from the court passing the stay order by an affidavit from one party or the other or in any other way the executing court cannot proceed further and if it does so if acts illegally. There can be no doubt that no action for contempt can be taken against the executing court, if it carries on execution in ignorance of the order of stay and this shows the necessity of the knowledge of the executing court before its jurisdiction can be affected by the order. In effect therefore a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowled''ge of the injunction order before it could be penalised for disobeying it. Further it is equally well settled that the injunction order not being addressed to the court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an order of injunction to a party and an order of stay to a court. In both cases knowledge of the party concerned or the court is necessary before the prohibition takes effect. Take the case where a stay order has been passed but it is never brought to the notice of the court, and the court carries on proceedings in ignorance thereof. It can hardly be said that the court has lost jurisdiction because of some order of which it has no knowledge. This to our mind clearly follows from the words of O.XLI, R. 5 of the CPC which clearly lays down that mere filing of an appeal does not operate as stay of proceedings in execution, but the appellate Court has the power to stay the execution. Obviously when the appellate Court orders stay of execution the order can have effect only when it is made known to the executing court. We cannot agree that an order staying execution is similar to an order allowing an appeal and quashing the execution proceedings. In the case where the execution proceeding is quashed, the order takes effect immediately and there js nothing left to execute. But where a stay order is passed, execution still stands and can go on unless the court executing the decree has knowledge of the stay order. It is only when the executing court has "knowledge of the stay order that the court must stay its hands and anything it does thereafter would be a nullity so long as the stay order is in force."

This view has now been given effect to by Parliament itself by addition of explanation after sub-rule (I) of Rule 5 of Order 41, Civil Procedure Code. The explanation says that an order of the appellate Court for stay of execution of the decree appealed against shall be effective from the date of communication of such order to the court of first instance. It further says that the court of first instance shall act upon the affidavit sworn by the appellant based on his personal knowledge stating that the order of stay for execution of the decree has been made by the appellate Court. The order of stay becomes effective from the date of communication and not prior thereto.

As observed earlier, the date on which the appeal was dismissed for non-prosecution, the stay order granted by the apex Court was not communicated to the appellate Court. The finding to this effect recorded by the appellate Court while disposing of Civil Misc. Petitions Nos. 44,45,46 and 47 of 1985 is unexceptional. Not only on the date - May 21,1985 -- on which the appeal was dismissed on the basis of the statement of the counsel for the vendees pleading no instructions to prosecute the same, but even on the date on which possession was delivered to the respondents/pre-emptors, i.e. October 2, 1985, the order of stay issued by the apex Court was not communicated either to the appellate Court or to the court of first instance. It is unfortunate that the vendees moved the apex Court by way of writ petitions challenging the vires of the Punjab Pre-emption Act and the apex Court after issuing Rule Nisi in the writ petitions, stayed further proceedings in the appeal before the appellate Court, but this order was not communicated to the latter and the counsel for the appellant in the appeal before the appellate Court was also not informed of the order on the date on which he made a statement pleading no instructions that the Court had stayed further proceedings in the appeal. For this remis, the petitioners are to blame themselves. I do not find any error in the order of the appellate Court refusing to re-admit the appeal.

For the reasons aforesaid, the revision petitions arc deviod of any merit and the same are dismissed but with no order as to costs.

Revision dismissed.