Karam Kaur and others vs Bhajan Singh

This revision petition is directed against the order of Sub-Judge 1st Class, Moga, dated 24th of January, 1980 whereby the learned trial Court dismissed the application filed by the judgment-debtors i.e., the present petitioners under Order 41, Rule 5 of the CPC for restoration of possession of land measuring 9 kanals 7 marlas, possession whereof was earlier on delivered by the Executing Court to Bhajan Singh decree-holder on 28-12-1978, even though this Court vide its order dated 22-12-1978 had stayed dispossession of Karam Kaur judgment-debtor. Copy of the stay order was, however, received by the Executing Court on 6-1-1979.

The learned counsel for the parties were heard.

It was vehemently argued by the learned counsel for the petitioners that the order of stay of execution passed by the appellate Court under Order 41, Rule 5 of the CPC takes effect from the time it is passed i-e, on 22-12-1978 and that the executing Court was not legally competent to subsequently get the delivery of possession of the part of the suit land effected in favour of the decree-holder on 28-12-1978. It was further submitted that mere fact that the stay order was conveyed to the executing Court on 6-1-1979 would not be material and judgment-debtors i.e, the present petitioners are entitled to get back the possession of the part of the land in dispute, possession whereof, had been delivered to the decree-holder, in violation of the stay order granted by this Court.

The argument that the stay order lakes effect from the time it is passed is devoid of any merit. In view of the Explanation added after sub-rule (i) of Rule 5 of Order 41 of Civil Procedure Code, an order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance. Similar view was expressed by their Lordships of the Supreme Court in case Mulraj Vs. Murti Raghonathji Maharaj, , wherein it was held that in case of a stay order as opposed to an order of injunction, as soon as the Court has knowledge of it, it must stay its hand and further proceedings are illegal; but so long as the Court has no knowledge of the stay order it does not lose the jurisdiction to deal with the execution which it has under the Code of Civil Procedure.

It was further observed in the afore cited authority by the apex Court, as follows at page 1390:--

"Though the Court which is carrying on execution is not deprived of the jurisdiction the moment a stay order is passed, even though it has no knowledge of it, this does not mean that when the Court gets knowledge of it, it is powerless to undo arty possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the Court has knowledge of the stay order. We are of opinion that S. 151 of the CPC would always be available to the Court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act under S. 151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so. Though, therefore, the Court executing the decree cannot in our opinion be deprived of its jurisdiction to carry on execution till it has knowledge of the stay order, the Court has the power in our view to set aside the proceedings taken between the time when the stay order was passed and the time when it was brought to its notice, if it is asked to do so and it considers that it is necessary in the interests of justice and the interim proceedings should be set aside. But that can only be done by the Court which has taken the interim proceedings in the interest of justice, S. 151 of the CPC provided the order is brought to its knowledge and a prayer is made to set aside the interim proceedings within a reasonable time. Otherwise the interim proceedings in our opinion are not a nullity and in the absence of such exercise of power by the Court executing the decree under S. 151 they remain good for all purposes."

Both the learned counsel for the parties stated at the Bar that Regular Second Appeal No. 2241 of 1978 filed by Karam Kaur, as well as Regular Second Appeal No. 2242 of 1978 filed by Amar Kaur and Jagir Kaur have since been allowed and the judgment and decree passed by the Additional District Judge, Faridkot on 12-10-1978 have been set aside. From all these circumstances, it is quite apparent that delivery of possession of part of the suit land to Bhajan Singh decree-holder, would certainly cause great hardship to Karam Kaur and other judgment-debtors and the executing Court had failed to exercise jurisdiction vested in it by virtue of inherent powers u/s 151 of the CPC to order restoration of possession to Karam Kaur and other judgment-debtors.

The impugned order passed by the executing Court is accordingly set aside and the executing Court is directed to deliver possession of the part of the suit land to Karam Kaur and other judgment-debtors which had earlier on been delivered to Bhajan Singh decree-holder in spite of the stay order granted by this Court on 22-12-1978. This petition is accordingly allowed: Both the parties, through their counsel, are directed to appear before the executing Court on 25-3-1992. Copy of this order be sent to the executing Court forthwith for compliance. Copy of order be also given Dasti.

Petition allowed.