Majeti Subrahmanyam vs Majeti Panakala Rao and others

Raghuvir

In this revision wide ranging questions touching the procedure as to the manner an order of "stay" granted by an appellate authority has to be communicated under rule 5 or Order 41 of the CPC and what order, this court can pass u/s 22 of Act XV of 1960 (the Act; and the amplitude Of expression "thinks fit" was also debated, These questions arose when a tenant--the revision petitioner was ordered to be evicted in proceedings in A.B.A. No. 54 of 1972 by the Rent Controller at Guntur on October, 14 1976 from the rented house at Ramachandrapuram Agrabaram in Guntur Municipality. The order of eviction was confirmed in appeal R.C.A. No. 27 of 1976 on March 8, 1979 and the tenant was directed to vacate the house on or before June, 8, 1979. The appellate order is the subject matter pending consideration in C.R.P. No. 2815. This court in C.M.P. No. 2952 of 1979 on May 29, 1979 ordered stay of all proceedings in the Court of the Rent Controller including eviction of the tenant. The landlords it is averred, "not knowing the stay" order on May 29, 1979, lodged E.P. No. 349 of 1979 on June 12, 1979 and applications--E.A. No. 640 of 1979 to break open the lock of the premises and E.A. No. 641 of 1979 of obtaining assistance from the local Police. The petitions were ordered on the same day (June 12) by the Rent Controller and in the Instant order under revision it is found the tenant was evicted from the house before 1.00 P.M. on June 13, 1979, and the order of stay dated May 29, 1979 it is round to have been received in the office and is recorded as R. No. 853 against the date June 15, 1979. The other facts found in justification of the execution of the order of eviction requires to enumerate what transpired when the court reopened after summer recess on June 11, 1979. The tenant lodged a memo in the office of the Rent Controller by Sri G.M.K. Prasad, a Member of the Guntur Bar and Junior of the Senior Counsel who appeared for the tenant in R.C.A No. 27 of 1976. The memo contained information to the Court of the Rent controller that the appellate order dated March 8, 1979 was the subject in C.R.P. 2815 of 1979 in the High Court and further this court ordered "stay" in favour of the tenant in C.M.P. No. 5952 of 1979 on May 29, 1979 in particular inter-directing the execution of the order of eviction, This memo is lodged soon after the court reopend on June 11, 1979 after summer recess and that memo numbered as "15504". On that day the memo was filed along with papers as many as "782 papers i.e., plaints, petitions" in the court. The clerk assisting the Head clerk of the court received the memo and gave a number and recorded in C.R. 17 Register. The memo was handed over by the Head clerk to the Bench Clerk dealing with Rent Control applications on June 13, 1979. The landlords (as stated earlier) sought execution of eviction order in E.P. No. 349 of 1979 and that petition was lodged on June 12, 1979. The Bench Clerk obtained orders of the Rent Controller on the execution petition and for breaking open locks in E.A. No. 641 of 1979 and for assistance of local police in the application E. No. 641 of 1979. The necessity for such an order on that day is not apparent, A "warrant" was handed over on June 12, 1979 to the Amin of the Court for execution. The Amin along with two process servers, village karnam and with two police Constables reached on the next day the house in question for execution. Thereupon the tenant''s son by name Rajendra Prasad rushed assistance to Sri. S.L. Narayana Advocate who appeared for the tenant in some other proceedings (not in the instant Rent Control proceedings). Sri. S.L. Narayana was informed at 9.15 A.M. that not with standing the orders of the High Court, the Amin of the court and two Police Constables were threatening to execute the warrant of delivery inspite of the orders of stay of execution from the High Court and requested him to go over to his house. Sri S.L. Narayana rushed to the house in question at 9.30 A.M. and in an affidavit submitted later affirmed that he had perused the stay order contained in a carbon copy of High Court, informed the Amin, the decree-holders, the Police Constables the implication of the Stay order and informed them any execution of warrant of eviction in the circumstances is violative of the orders of the High Court and that in the court of the Rent Controller a memo on June 11, 1979 was lodged. Notwithstanding the information the Amin and the decree holders had stated" the Rent controller had passed order directing delivery of the house to the decree-holders and they are bound by that order" and no other. Sri S.L. Narayana returned from there at 11.00 a.m. to the Court. The tenant at 1.45 P.M. on June 13, 1979 submitted application E.A. No. 643 of 1979 to recall the execution warrant and at 4-15 P.M. E.A. No. 646 of 1979 on the same day was filed to redeliver the premises to the tenant and on June 14, 1979 filed application E.A. No. 646 of 1979 to redeliver the house to the tenant. The Rent Controller in E.A. No. 643 of 1979 records (in the order under revision) that he had recalled the order immediately and communicated the order to the Amin which reached the officer after 1.00 p.m.

The Rent Controller referred to the above facts and some other related facts which are not germane now and in the order on July 19, 1979 under revision found:

When there is a warrant issued from this court directing the Amin to evict the judgment debtor and to deliver vacant possession to the decree holder, he is bound to execute that warrant unless and until the warrant is recalled by this court, or until any further orders were received by him to the contra.

and that Amin had not exceeded his authority in having executed the order of the Court before 1.00 P.M. on June 13, 1979 for the execution was:--

.......in accordance with due process of law, in the circumstances of this this I am not satisfied that any possible injustice was caused to the applicant-tenant in whose favour the stay order was passed during the period till this court has knowledge of the stay order.

The Rent Controller as regards the memo lodged on June 11, 1979 submitted by Sri. G.M.K. Prasad, held that it was not brought to his notice for the concerned Bench Clerk was handed over the memo only on June 13, 1979 by the Head Clerk though it was received on June 11, 1979 and further at 2.00 P.M. on June 13, 1979 when E.A. No. 643 of 1979 was considered even before the application E.A. No. 646 of 1979 was received by him at 4.15 PM on the same day (and to repeat) that he had recalled the warrant but found that before the order was communicated to the Amin the house was delivered to the landlords. The delivery was ''real'' and not ''paper-delivery'' as contended by the tenant. The delivery effected in such circumstances was not illegal and therefore the payer of the tenant to redeliver was rejected. Hence the Revision.

The learned Advocate General for the revision petitioner referred to the circumstances and argued that beyond doubt the tenant had brought to the notice of the court on June 11, 1979 in the memo as to the order of stay passed by the High Court in C.M.P. No. 5952 of 1979 and emphasised that on the morning at about 9-30 A.M. the Amin and the two Police Constables were informed that the proceedings they were about to execute were illegal having regard to the orders of the High Court and notwithstanding the information the dispossession of the tenant even if it is real, was not legal. The tenant in the Circumstances should have been put back the possession of the house and that the order of the Rent Controller under revision is unjust in the circumstances within the meaning of Section 22 of the Act 15 of 1960 and cited the case reported in Mulraj Vs. Murti Raghonathji Maharaj, Divergent views were expressed by the High Courts of Calcutta. Patna and Punjab taking one view and the other views were expressed by the High Courts of Madras, Kerala and Allahabad as to the effects of an order of ''stay'' granted by the appellate court and as regards jurisdiction and validity of orders in execution proceedings passed by the executing court subsequent to the order of stay ordered under Rule 5 of order 41 of the Code of Civil Procedure. The opinion of the Calcutta High Court in the case of Basesswari Chowdhurany vs, Herro Sundar Mozumdar (1896 96) 1 Cal WN 226 was affirmed as correct to hold till the order of stay comes to the knowledge of the executing courts its jurisdiction to carry on execution in no way was affected. As to how the ''stay'' order has to be communicated, the Supreme Court observed:

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.

and later added:

There is in our opinion no uncertainity by reason of the fact that the court to which the stay order is addressed must have knowledge of it before it takes effect for, it can always be proved that the court to which the stay order was addressed had knowledge of it and that is not a matter which should really create any difficulty or uncertainity. Once it is clear that a stay order is in the nature of a prohibitory order, knowledge of it by the court which is prohibited is essential before the court is deprived of the power to carry on the proceedings...... 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 any 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.

Sri V. Jagannadha Rao appearing for the respondents argued that the rationale of the decision is no more extent for Rule 5 of Order 41 of the CPC is now amended and submitted that if the court had knowledge of the order of stay passed by the appellate court, the legal effect of the proceedings is not nullity and relied on Pursottam Saran vs. Brahmanand (102 I.C. 665) and Lakshmi Chand vs. Phul Chand (125 I.C. 53). The former case is from Allahabad High Court and the latter is from Lahore High Court and the two cases demonstrate one of the views reminiscent of divergence which is now set at rest in the case of (1). The Counsel realising the difficulty further submitted with effect from February, 1, 1977 Rule 5 of order 41 of the CPC is amended and there is an explanation incorporated to the rule therefore it is argued the decision in (1) (above) does not hold the field. The learned Counsel elaborated the argument to contend that the explanation incorporated to Rule 5 now shows the Parliament was aware of the decision of the Supreme Court and to obviate further controversy explanation was incorporated and the effect of the explanation is in the words of the counsel the executing court can be informed of order of stay only in the manner as set cut in the explanation and in no other way and such being the scope of Rule 5, the learned Counsel urged the memo filed on June 11, 1979 and with reference to what transpired on the morning of June 13, 1979 when Sri S.L. Narayana, informed the Amin and the Police Constables having regard to the ''explanation'' that should not be deemed proper communication to the executing court (Rent Controller) in the circumstances of the case.

The explanation in my view can not be read to mean any special mode or procedure to be adopted except to explain that the order of stay by the appellate court shall have effect from the date of communication to the executing court and an affidavit sworn by the appellant pending the receipt of the order and that the executing courts can act upon the basis of that information. The ''explanation'' to Rule 5 can not in law to be construed having the effect of prescribing a ''special'' procedure and if that be the interpretation, the rule that ''in any other way'' executing Court can be informed (or communicated) holds good, notwithstanding the incorporation of the explanation by the Amendment Act 104 of 1977 to the rule with effect from February 1, 1977. The result of the communication of ''stay'' order is that all proceedings thereafter by the executing court are in law a ''nullity''. The argument advanced on behalf of the respondents without meaning any reflection on the learned counsel appearing for them after the authoritative pronouncement of the decision in (1) (above) is extreme and extravagent.

The facts disclose that the executing court has been informed in the memo on June 11, 1979 that the High Court had ordered stay of execution. The Amin was informed by Sri S.L. Narayana of the implications of the order of stay ordered on May 29, 1979 by this court. The ministerial officers received the memo on June 11, 1979, What are the implication in law of these facts ? The learned Counsel for the respondents in this regard argued that having regard to sections 15 and 22 read with Rule 23 of the Rules under Act XV of 1960, the restitution of the premises to the tenant in law cannot be ordered by this court and cited the caw in A.S.T. Arunachalam Pillai Vs. Southern Roadways (Private) Ltd., On the facts of a case if it is found that the executing court was informed of the order of the stay passed by this court, from that time or thereafter if there is execution as held by the Supreme Court u/s 151 of the CPC it is proper for the court to order "restitution". This court had held on numerous occasions that the Rent Controller is a court and the provisions of the CPC govern the proceedings under Act XV of 1960. The learned Counsel for the respondents in this regard referred to the words "think fit" in Section 22 of the Act and stressed that the scope of the words in the Act would not enable this court to pass "any order,'' except to pass an order which the lower court themselves could have passed and relied on the ratio of the case decided in Raja Ram Mahadev Paranjype and Others Vs. Aba Maruti Mali and Others, . This aspect needs no elaboration. This court can pass, to sum up, and there is no legal impediment to do so if it is found that delivery of house in execution to the land lord is illegal "thinks fit" the execution is not just in the circumstances, this court can pass order of restitution u/s 22 of the Act or in exercise of the powers u/s 151 of the CPC or under both the provisions.

It is perhaps necessary before directing "redelivery" to give a ending on the facts of the instant case on what day and at what particular time the lower Court was informed of the orders of stay passed by this Court on May 29, 1979. I record in this order a prima facie satisfaction with a view to obviate difficulties and embarrassment to the parties and keep open the questions of fact for the court dealing with the contempt under Contempt of Courts Act 70 of 1971 for I have directed to lodge proceedings against the persons concerned. The facts which impelled me to do so are;

(a) Sri G.M.K. Prasad, advocate filed a memo which has been received by the Rent Controller''s Court on June 11, 1979 (Vide C.R. 17 Register No. 15504).

(b) that at 9-30 A.M. Sri S.L. Narayana, advocate informed the Amin Sri Shaik Saheb, Sri K. Franklin (P.C. 414), Sri Y. Koteswara Rao (P.C. 2339) that there was a stay order passed by the High Court and execution of the order is not legal. (The affidavit filed by the Advocate does not indicate that he had informed the village Karnam and the two process servers who were present there. Therefore they are omitted from the proceedings).

(c) The Rent Controller''s court received the memo on June 11, 1979. The various steps taken by the ministerial officials of the Court and by the Rent Controller cannot be considered in law or as of fact that the authorities had no knowledge of the order passed on May 29, 1979.

(d) At 2.00 P.M. the Rent Controller had recalled the order in the circumstances does not per se indicate and cannot he considered having no knowledge before that hour of the day or in the previous days.

The learned Advocate General submitted that no special method is prescribed under the provisions of Act 70 of 1971 except a direction to be issued to him if the Court is satisfied that a prima facie case is made out for launching proceedings under the said Act.

The learned Advocate General is directed under the provisions of Act 70 of 1971 to launch proceedings against the Rent Controller Sri A. Nagendra Reddy, Tadikonda Koteswararao (second respondent). Tadikonda Hariprasadarao (third respondent), Tadikonda Ramavaraprasad (fourth respondent), Tadikonda Bhuvaneswararao (fifth respondent), Sri K. Md. Khan (Head Clerk of the Rent Controller''s Court, Guntur) Sri G. Anjireddy (Beach Clerk of the Rent Controller''s Court), Shaik Syda Sahab, Amin, Sri C. Franklin (P.C. 484) and Sri Y. Koteswara Rao (P.C. 2339).

In the result, the order of the Rent Controller in E.A. No. 648 of 1979 dated July 19, 1979 is set aside. The Civil revision petition is allowed with costs. The premises (the house) in question is directed to be delivered back to the revision petitioner forthwith. The learned counsel Sri V. Jagannadha Rao at the close of the order sought leave to apneal, to the Supreme Court under the Constitution of India. The matter arises in a Civil revision petition, Ordinarily no leave is asked for the civil revision petition. Articles 133 to 136 of the Constitution of India are recently amended under the Constitution Amendment Act 44 of 1978. To obviate controversy, the subject of dispute in the revision is ordered not a fit case which required to be decided by the Supreme Court. Leave, therefore is refused.