Kewal Krishan vs Mst. Kartari etc.

D.B. Lal, J.—In this application purpoting to be u/s 151 of the Code of Civil Procedure, the Appellant Shri Kewal Krishan prays for a stay of the operation of the order passed by this Court in second appeal, whereby reversing the decision of the first Appellate Judge, the suit for possession of one Shrimati Kartari has been decreed. It is contended on behalf of the Appellant, that in case the decree is executed and he is dispossessed of the land, he is likely to suffer substantial loss. The application has been made without unreasonable delay and he is prepared to furnish whatever security is asked for by the Court. On these grounds, it is prayed that the execution of the impugned order be stayed.

Although the application has been put u/s 151, yet the principle evolved in Order 41, Rule 5 would be amenable to the situation. It is then for this Court to see as to whether substantial loss would accrue if stay is not granted. It is, however, conceded that there is no un-reasonable delay in filing the petition and that the Appellant is prepared to give the security whatever is fixed by the Court.

This matter was formerly listed before the Hon''ble the Chief Justice and at that stage some question regarding jurisdiction was raised, referable to the power of this Court against whose decision the Letters Patent Appeal is filed, to grant the stay of the operation of its own orders. The learned Chief Justice left that question open and preferred to get listed this petition in this Court. However, the learned Counsel for the Respondents has specifically given up his plea regarding jurisdiction, and he even conceded that in view of a former decision of this Court (specified in the order of the learned Chief Justice) he would not question the jurisdiction for the making of any stay order. The learned Counsel at the same time seriously contested that on the merits of the case, no stay can be granted.

The learned Counsel, for the Petitioner of course, advocated, substantial loss which is likely to be accrued to the Appellant in case he is dispossessed and the operation of the impugned order is not stayed. Avowedly the Appellant is in possession, and the decree of his dispossession granted by the trial Court although set aside by the first Appellate judge, yet is restored by this Court in second appeal. In case the Appellant is deprived of his possession, he is likely to suffer substantial loss which may even be irreparable. It cannot be pre-judged as to what mode he is adopting for cultivating the land and to what convenience or benefits he would be deprived of in case he is dispossessed. At any rate he is willing to compensate the Respondents by giving security.

The main contention of the learned Counsel for the Respondents has been that a sufficient case for stay is not made out and that a mere allegation of irreparable injury would not do. He has relied on a number of authorities of which reference need be made to only a few. In Jaisingh Appellant v. Jagatram and Anr. Respondents AIR 1953 Nagpur 175, it was emphasised that in these cases the provision of restitution made in the Code should serve the purpose, unless a substantial loss is exhibited which cannot be made up unless a stay of execution is granted. In the instant case where the decree is for dispossession, substantial loss must accrue as the Appellant would be deprived of his possession over the land. The mere fact that a provision exists for restitution in the Code would not be very pertinent in the circumstances. In AIR 1934 160 (Nagpur) it was emphasised that substantial loss means more than ordinary loss. In the instant case the loss which is likely to be sustained cannot be considered ordinary and it may even be more than ordinary. In another case of that High Court reported in Fakira Mahadaji Marathe and Anr.--Plaintiffs-Appellants v. Mt. Ramsukhibai w/o Sakatsingh and Ors.--Defendants-Respondents AIR 1946 Nag 428, the emphasis was again on substantial loss and nature of such loss was required to be stated. The loss must be substantial and it can only be that, if it is substantially beyond repair. A person with long possession of cultivated area, if deprived of that possession, is likely to suffer a loss which may even be beyond repair. Finally the learned Counsel referred to Borough Municipality, Jamnagar, Defendant-Appellant v. Firm Ramji Vasram, Plaintiff-Respondent AIR 1956 Sau 113, which again dealt with the question regarding substantial loss. That case related to a money claim and as such the ratio may not be strictly applicable to a case where a decree of dispossession for land has been granted. It cannot, therefore, be disputed that if execution of a decree is likely to result in substantial loss to a judgment-debtor, discretion is given to the Court to stay execution, provided the other two conditions of Rule 5, Order 41 are satisfied, namely, that the application is made without unreasonable delay and that the Applicant is prepared to give security for due performance of such decree. Where there are specific provisions in the Code, I do not think Section 151 would at all be attracted. Even if that be so, a case on merit in favour of the Appellant does exist and a stay of the operation of the impugned judgment must be allowed.

It was slated at the bar that the area of the land is about 5 bighas and Rs. 1,000/- per annum should be the valuation of the crops which are raised. The Appellant has either to pay Rs. 1,000/- per annum to the Respondents or give security to that extent, before the present stay order is made in his favour.

The application is, therefore, allowed and the operation of the impugned judgment is stayed, with the result that the Appellant would not be dispossessed from the land, subject to this condition, that he would pay Rs. 1,000/- per annum either in cash or give security to the extent of that amount per annum to the satisfaction of the Senior Sub-Judge Una. The cash payment be made or the security be given, as directed above, within 30 days from the date of this order. Thereafter similar payment shall be made or security given every year.