Durga Singh vs Smriti Debi

Mitter, J.—This Rule was issued at the instance of the Defendants in a suit for declaration of title and possession and is for an order for re-delivery of the property concerned which had been delivered to the Plaintiff-opposite party, in spite of an order for interim stay of such delivery. Against the decree for possession passed by the court of first instance, the Defendants unsuccessfully appealed to the lower appellate court. From the decree of the latter court, the Defendants preferred a second appeal which was admitted by this Court on September 10, 1953. On an ex parte application for stay of delivery of possession, pending the hearing of the said appeal, this Court on the same date passed an interim order for such stay. In the meantime, on September 5, 1953, unknown to the Appellant-Petitioners, the opposite party initiated execution proceedings for delivery of 1954 Jan. 5, 8 possession, being Title Execution Case No. 31 of 1953, in the seventh court of the Subordinate Judge at Alipore. Pursuant to the said execution proceedings, the opposite party obtained possession of the property on September 15, 1953. this Court''s order for interim stay, made on September 10, 1953, was not communicated to the executing court until September 17, 1953. The Appellant-Petitioners thereafter applied to the said seventh court of the Subordinate Judge at Alipore for being restored to possession, but the said court by its order of October 5, 1953, refused to make the order asked for, on the ground that it was not competent to do so. By reason of possession of the property having been delivered on September 15, 1953, as aforesaid, the said Rule, issued on September 10, 1953, staying such delivery, became infructuous, and accordingly the Appellant-Petitioners applied to this Court and obtained the present Rule on December 7, 1953.

The foregoing facts are not in dispute, and the point for decision is whether in view of the interim order of this Court for stay of delivery of possession made on September 10, 1953, the subsequent delivery of possession given to the opposite party was invalid and of no effect.

In our view, the question is concluded by authority, although the decisions on the question differ as to the extent of the effect of an execution made in spite of a prior order for any, but not officially communicated prior to execution.

In support of the Rule, Mr. Apurba Dhan Mukherjee cited Hukumchand Boid v. Kamalanand Singh ILR (1905) Cal. 927; Satinath Sikdar v. Ratanmani Naskar (1911) 15 C.L.J. 335; Jatis Chandra Pal Chowdhury and Ors. v. Kshirode Kumar Pramanik (1942) 47 C.W.N. 186 and Tarulata Devi v. Bibhuti Bhusan Roy (1952) 57 C.W.N. 205. Mr. Mukherjee''s argument is that an order for stay takes effect as soon as it is made and is not postponed until it is communicated to the executing court and that, therefore, any order made in execution proceedings is wholly without jurisdiction, even though the order for stay remains uncommunicated. In Hukumchand Boid v. Kamalanand Singh ILR (1905) Cal. 927, delivery of possession was given to the decree-holder after an unconditional order had been made by the appellate court for stay of execution, but before such order could be communicated. The validity of the delivery of possession was questioned in a collateral proceeding, yet Woodroffe and Mookerjee, JJ., held that the order for stay became operative the moment it was made, irrespective of whether it was communicated to the executing court or not and that the delivery of possession after the order for stay was invalid. Mookerjee, J., in a separate judgment held that the delivery of possession made by the executing court, after the High Court had made an unconditional order for stay of execution, was done in excess of the powers of the executing court. Mr. Chakravarty appearing on behalf of the opposite party conceded that the order for stay must take effect as soon as it is made and that it is not in the nature of a prohibitory order on the executing court which takes effect from the time it is communicated. In Jatis Chandra v. Kshirode Kumar (1942) 47 C.W.N. 186, Mitter, J., speaking of the conflict between Hukumchand''s case, on the one side, and the earlier Calcutta case of Bissesswari Chaudhurani v. Horro Sundar Mazumdar (1892) 1 C.W.N. 226, and certain decisions of other High Courts, observed:

In the view we are taking it is not necessary which of the aforesaid views is correct.

The learned Judge, nevertheless, went on to say that during the operation of the order for stay passed by the appellate court the lower court did not lose jurisdiction over the proceedings concerned and that it could not, therefore, be said that the lower court was altogether devoid of jurisdiction. The ultimate conclusion to which the learned judge arrived was that an order passed by the executing court, in contravention of the stay order, would be an "irregular" or even an "illegal" order, an order passed "in the illegal exercise of jurisdiction", but would not be a nullity. In view of the learned Judge''s own observation that it was not necessary to decide which of the two views, represented respectively by Hukumchand''s case and Harro Sundar Majumdar''s case, laid down the correct law of the matter, the observation that an order passed in contravention of the stay order could at best be an illegal order and not a nullity must, in our respectful view, be regarded as obiter. The view taken by the learned Judges in Hmkumchand''s case is reiterated in Satinath Sikdar v. Ratanmani Naskar (1911) 15 C.L.J. 335. In that case, Mookerjee, J., who delivered the judgment of the Court, characterised the order made on contravention of the ad interim order for stay of proceedings as entirely without jurisdiction. Das, J., in Tarulata v. Bibhuti (1952) 57 C.W.N. 205. held that an order made by the executing court in ignorance of the order for stay, but in contravention thereof, was at most illegal, but not ultra vires. It must, therefore, follow that Das and Guha Ray, JJ. in Tarulata''s case dissented from Hukumchand''s case. The learned Judges, however, were of the view that the observations of the learned Judges in Hukumchand''s case were obiter, in that they did not form the basis of their ultimate decision and that the decision in Hukumchand''s case was, therefore, not binding upon them. Das and Guha Ray, JJ., in effect followed the view ultimately taken by Mitter, J., in Jatis Chandra v. Kshirode Kumar (1942) 47 C.W.N. 186.

As we have already said, the question involved in this Rule is concluded by authority, in that all the decisions cited laid down that an order of an executing court made in contravention of an order for stay, whether communicated or not, was illegal and could, therefore, be set aside in appropriate proceedings. It is not, therefore, necessary for us to decide the abstract question whether the order of the executing court in those circumstances would be merely illegal or ultra vires. The delivery of possession complained of in this case having been made in contravention of the order for stay must be regarded as illegal, according to all the authorities cited. We must, therefore, order that the Petitioners be restored to the possession of the property.

In the result, this Rule is made absolute with costs, hearing fee being assessed at two gold mohurs.

Lahiri, J.

I agree.