Hira Lal vs Chuni Sao

Kulwant Sahay, J.—Facts:--The petitioner obtained a decree from the Court of the Additional Munsif of Gaya on the 11th June, 1923, for ejectment of the opposite party from a certain house which was used as a shop by the opposite party in the town of Gaya. On the 18th June, 1923, the petitioner applied for execution of the decree and asked the Court to deliver possession to him of the house in dispute. Thereupon the executing court made an order to issue a writ for delivery of possession. On the 19th June, 1923, the opposite party preferred an appeal against the decree before the District Judge of Gaya and on the same day he made an application before the District Judge praying for stay of delivery of possession pending the hearing of the appeal. The learned District Judge thereupon made an order in these words "Put up to-morrow. Meanwhile stay execution."

The petitioner alleged that before this order of the 19th June was made by the learned District Judge, possession had already been delivered by the peon to him about 9 ''O clock in the morning on the 19th June. On the next day, i.e., the 20fch June, 1923, the opposite party filed another application before the District Judge in which he complained that although execution had been stayed by the order of the previous day and the said order was communicated to the peon before possession had actually been delivered, the peon notwithstanding that order put the decree-holder in possession and dispossessed the judgment-debtor and he prayed that it might be declared that the proceeding of the peon in delivering possession after the order for stay had been passed was invalid and that possession may be redelivered to him. The learned District Judge thereupon made the following order. "An order to stay execution was passed. Any delivery of possession effected yesterday is therefore invalid. Execution will be stayed pending disposal of the appeal, as if the appellants once ejected, the object of the appeal would be frustrated. The Munsif Additional Court will please at once hold an enquiry into the conduct of the peon. The appellant must make a statement before him."

Kulwant Sahay, J.

[After stating facts as set out above his Lordship continued.]

It appears that in compliance with this order possession has again been delivered to the judgment-debtor and he is now in possession. The decree-holder who is the petitioner in this case comes up to this Court against this order of the District Judge and his case is that possession having once been delivered the District Judge had no jurisdiction to stay execution. This matter came up for hearing before me on the 14th August, 1923, and as the exact time of the delivery of possession by the peon was disputed between the parties I thought it necessary to enquire from the District Judge as to the exact time when he bad passed the order for stay on the 19th June, and also the time when possession was actually delivered by the peon. The District Judge has sent a report to the effect that he is unable to state the exact time of the order to stay execution passed by him, but he says that as far as he remembers it was stated that the peon was in the middle of executing delivery of possession when the petition for stay was filed, or else that he was just about to do it. Anyhow it was stated before him that the matter was urgent. As matters stand, it is impossible for me here to determine as to whether possession had already been delivered before the order for stay was passed by the learned District Judge on the 19th June, 1923; however, the learned District Judge in dealing with the applications filed hbefore him on the 19th and 20th June, has proceeded ex parte without giving any notice to the decree-holder. Before an order for stay is passed under Order 41, Rule 5 of the CPC it is necessary that notice of the application should be given to the decree-holder and he should be callnd upon to show cause as to why execution, should not be stayed, In the present case the learned District Judge has passed the final order on the 20th June, 1923, staying execution of the decree until the disposal of the appeal without giving any notice to the decree-holder. The District Judge could certainly pass an ad interim order for stay pending the hearing of the application, but he ought not to have passed the final order for stay till the disposal of the appeal without giving an opportunity to the decree-holder to show cause against the application.

I think the proper procedure in the present case would be to set aside the order of the learned District Judge of the 20th June, 1923. He should be asked to deal with the application filed before him on the 19th June, 1923, after giving notice to the decree-holder, His order for stay of execution passed on the 19th June will be treated as an ad interim order till disposal of the application. It will no doubt be open to the decree-holder to show before the District Judge that before the order of 19th June had been passed possession had already been delivered. If that is shown to him then there would be nothing to stay and the application of the 19 June will be dismissed. If he is satisfied that possession was not delivered at the time then he will deal with the application according to law.

Each party will bear his own costs in this Court.