P.L. Morada vs S.D. Bakshi

D.B. Lal, J.—I had the advantage of perusing the judgment of my brother Thakur, J. While agreeing with the order rejecting the petition for stay, I would like to add a few lines giving my own reasons for rejection of that petition.

Order 41, Rule 5, Civil Procedure Code, will not be applicable for the reasons that the High Court is not the appellate court against the order sought to be appealed in the Supreme Court and that the High Court cannot be considered to have passed the decree of which execution is sought to be stayed. In fact, the High Court in appeal has only rejected the objection u/s 47, Civil Procedure Code, against execution. It is the order of the Controller which can be executed and, therefore, the High Court''s order cannot be stated to be an order or decree sought to be executed as such.

As regards Section 151, Code of Civil Procedure, if Order 45, Rule 13, Code of Civil Procedure, is applicable no assistance can be obtained from Section 151 of the Code. I am in respectful disagreement with the decision of my brother Judge in as much as he has held that the order of interim stay passed by this Court was without jurisdiction. Such interim stay pending an application for leave to appeal which could not be filed for reasons stated by the Applicant was an order capable of being made under Sub-rule 2(d) of Rule 13 of Order 45, as the purpose behind the order was to place the party seeking assistance of the Court in a position to file an application for leave to appeal which could be granted or refused further entitling him to prefer an appeal before the Supreme Court. In the alternative, if Sub-rule 2(d) of Rule 13 of Order 45 was not applicable for making the order of interim stay, then Section 151, Code of Civil Procedure, can easily be brought in to give the immediate relief, and hence the order of the Division Bench cannot be considered to be without jurisdiction.

However, the said order of stay has to be vacated because the present petition for stay has been put under Order 41, Rule 5(2) and (4) read with Section 151, Code of Civil Procedure, which provisions are obviously not applicable. That apart, no application for leave to appeal along with grounds of appeal has been preferred although the order of stay was made by this Court on December 11, 1975. Therefore, I am in agreement with my brother Thakur, J., that the present application for stay deserves to be dismissed. Order accordingly. There can be no order as to costs.

Chet Ram Thakur, J.—Shri P.L. Morada, who is in occupation of the premises known as Grange Villa, Simla as a tenant under Shri S.D. Bakshi, filed an application purporting to be one under Order 41, Rule 5(2) and (4) read with Section 151 CPC with a prayer that the execution of the order and judgment passed by the Division Bench of this Court on 5th December, 1975, in R.S.A. No. 40 of 1973 be stayed.

Shri Bakshi had filed an application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949, for the eviction of Shri Morada from the premises tenanted by him. This application was filed somewhere in 1970. That application was allowed and an appeal against the same was also dismissed by the appellate authority on 26-7-1972. He went in revision which was also dismissed on 9-11-1972. A review petition was also dismissed on 17-1-1973. Thereafter Shri S.D. Bakshi filed an application for the execution of the order, passed by the learned Rent Controller in the Civil Court. Shri Morada filed his objections purporting to be u/s 47 of the CPC It may be stated here that in the meanwhile Himachal Pradesh Urban Rent Control Act, 1971, had also come into force. Shri Morada contended that the Rent Controller who had passed the eviction order, no longer retained his jurisdiction as a fresh Controller was required to be appointed u/s 2(b) of the Himachal Pradesh Urban Rent Control Act, and as such the order of eviction passed by the erstwhile Rent Controller was a nullity and the same could not be executed in the Civil Court. According to him u/s 23 of the Rent Control Act, 1971, the execution of the order could be undertaken by the Controller appointed u/s 2(b) of the new Act. However, this contention of his was repelled by the learned Senior Sub-Judge. Against this order also he filed an un-successful appeal. Thereafter a further second appeal was filed in the High Court. In that appeal he had taken a fresh point to the effect that the landlord had assumed possession over a considerable portion of the accommodation which had since fallen vacant and as such he no longer stood in need of further accommodation so as to eject him. The High Court while accepting the appeal and vacating the orders of the appellate authority as also that of the Rent Controller held that Shri Morada Appellant could not be ejected in those execution proceedings after the commencement of the Himachal Pradesh Urban Rent Control Act, 1971. That a tenant could be dispossessed in execution of that order only when the requirements of Section 14 of the Himachal Pradesh Rent Control Act had been satisfied. The execution could only be taken u/s 23 and for that a fresh order of the Controller u/s 14 was required to be passed. Whatever new facts are pleaded by the tenant, relating to the convenience of the landlord and attributable to subsequent vacation of a portion of accommodation could very well be taken up before the Controller in that proceedings u/s 14. In short the order of the Controller had to be considered as an order passed for eviction u/s 13 of the (Punjab Urban Rent Restriction Act) and since it has been executed u/s 23 of the new Act, it has to be converted into an order of the Controller u/s 14 and only thereafter this is executable u/s 23.

Against this judgment and order, Shri S.D. Bakshi on a certificate for leave to appeal granted by this. Court, went in appeal to the Supreme Court. Their lordships of the Supreme Court remanded the case by their order dated July 14, 1975, with the observation "it appears that before the High Court, for the first time, a point was raised that the present Appellant landlord: had assumed possession over a considerable portion of the accommodation which had since fallen vacant and as such he no longer stood in need of any further accommodation so as to eject the tenant. The High Court disposed of this question on the assumption that the Appellant had to take new proceedings under the provisions of Section, 14 of the Himachal Pradesh Urban Rent Control Act, 1971. That assumption is no longer valid. The High Court will, therefore, now have to consider and dispose of the point raised before it, with regard to the Appellant-landlord having assumed possession over a considerable portion of the accommodation which had since fallen vacant, and as such being no longer in need of any further accommodation so as to eject tenant-Respondent here. The High Court will also have to consider the question whether the tenant is entitled to raise the question at the stage at which he did so...".

The case after remand came up for hearing before the Division Bench of this Court and the same was decided on December 5, 1975, whereby the appeal was dismissed holding that the objections of the Appellant u/s 47 of the CPC at the stage of execution were not maintainable and were rightly rejected by the two courts below.

It appears that after the dismissal of the appeal the tenant viz., Shri Morada filed the C.M.P. 1523/75 for the stay of the execution proceedings taken out by the landlord, before the learned Senior Sub-Judge.

This Court by its order dated December 11, 1975, passed the following order:

Issue notice. Meanwhile stay execution until the application for leave to appeal is filed and disposed of by this Court.

In the application filed by Shri P.L. Morada, it had been pleaded that the landlord had taken out the execution proceedings without obtaining the attested copy of the judgment of the High Court and the Senior Sub-Judge. As soon as the Petitioner learnt about the execution he submitted an application before the learned Senior Sub-Judge stating therein that he intended to prefer an appeal against the order of the Division Bench of the High Court in the Hon''ble Supreme Court of India. That though he had applied for being supplied urgently an attested copy of the order and judgment, the same had not been supplied to him yet, and that in the absence of the said copy of the order and judgment and without scrutinizing the entire judgment, an application for leave to appeal to the Hon''ble Supreme Court of India could not be filed nor the proposed grounds of appeal to be filed with the said application for leave could be prepared. On December 8, 1975, the learned Senior Sub-Judge after hearing the parties, announced that the execution of the order is stayed and that the final decision on the applications would be announced on the 15th December, 1975, and the learned Senior Sub-Judge, however, observed that the Petitioner could approach the High Court as well and obtain a stay order from the High Court. The Petitioner applied for urgent supply of an attested copy of the order and judgment passed by this Court. The Copying Agency had, however, informed the Petitioner that the judgment is fairly lengthy one and that it would take some time to supply the attested copy of the same. That the Respondent was bent upon evicting the Petitioner from the premises by adopting all possible means and it was in these circumstances that he applied for stay of the execution and this Court passed the aforesaid order. The Respondent also filed C.M.P. 1526 of 1975 for vacation of ex-parte stay order and it was pleaded therein that no appeal is competent from the order of the Division Bench passed in R.S.A. 40 of 1973 on 5th December, 1975, and the stay order had been passed on insufficient ground. Further that there was no compliance of Order 41, Rule 5 as no security for due performance of the decree or order was ever furnished. That the judgment-debtor had deliberately done considerable damage to the property in question which is in his possession and he intends to inflict further damage to it by staying in the premises. That the interest of justice requires that the decree-holder was entitled to reap the fruits of his decree as the accommodation is urgently needed by him for the marriage of his son.

This application for stay is filed under Order 41, Rule 5 of the Civil Procedure Code. Under Sub-rule (1) of Rule 5 the appellate court has been given the power to stay execution of a decree appealed against in case the two conditions of Sub-rule (3) are satisfied. The reading of Sub-rule (1) would show that this discretion is to be exercised by the court only in case the execution of the decree is not likely to result in substantial loss to the decree-holder because the rights of the decree-holder having been determined it is not fair that he should be deprived of the fruits of the decree merely because the judgment-debtor prefers an appeal against the decree. It would further be apparent from the reading of Sub-rule (1) that unless an appeal is already filed a stay order cannot be granted and this power is conferred upon the appellate court under Sub-rule (1) of Rule 5 of Order 41 of the Code only if there is an appeal pending in that court and if sufficient cause is shown for making an order for stay of the execution of the decree. In the present case it would be apparent from the averments of the Petitioner that he had not so far obtained the copy of the judgment and order of the High Court against which he wants to file an appeal. The copy has not yet been prepared and as such he could not prepare and file the grounds of appeal for leave to appeal. It means that the court is not seized of the appeal. Therefore, in my opinion, this discretionary power could not be exercised by the court in favour of the Petitioner unless there is a lis before this Court. The Court cannot exercise this power and the order, in my opinion, which was obtained by the Petitioner from this Court on December 11, 1975, is without jurisdiction.

Learned Counsel for the Petitioner contends that as he was not supplied the copy of the judgment for which he had made an urgent application and so he would be put to a great hardship in case the stay was vacated. But, it is not a universal rule that stay of execution should be allowed in all cases where the decree under appeal is for possession of immovable property and all the circumstances have to be considered as is laid down in Fateh Khan v. Daim and Ors. A.I.R 1927 Lah. 169. Therefore, merely because the Petitioner would be put to a great hardship is no ground to stay the execution especially when no appeal is pending before this Court.

In Lala Parshottam Saran Vs. Lala Hargoolal and Another, it has been held that an appellate court cannot order stay of sale unless it has season of the case in which the sale was ordered to take place. In this case a decree was passed upon a mortgage for the sale of the mortgaged property. The purchaser of a part of that property preferred objections to the execution of the decree but these objections were over-ruled by the Subordinate Judge and he ordered the mortgaged property to be sold in pursuance of the decree. The 20th of September, 1920, was fixed for the sale. On the 19th of that month an application was made to the High Court to stay the sale. At that time no appeal from the decision of the Court below in regard to the objections preferred by the Applicant had been filed. It was during the long vacation of the High Court when ordinarily appeals are not received, that the application was made to the Court to set aside the same. The learned Judge who was the vacation Judge made an ad-interim order for stay of sale, he having been informed that an appeal would be presented upon the re-opening of the Court. An appeal was as a matter of fact subsequently presented but it was dismissed. Meanwhile the property was sold, and an application having been refused by the Subordinate Judge an appeal was preferred to the High Court and it was contended that as the High Court had already ordered the sale to be postponed, the Court below ought not to have allowed the sale to take place and the sale was a nullity. The learned Judges who heard the appeal dismissed it on the ground that the order for stay of sale made by the vacation Judge was an order which he had no jurisdiction to pass, on the ground that the appellate court cannot order stay of sale unless it has season of the case in which the sale was ordered to take place. This is obvious from the terms of Order 41, Rule 5. Consequently it is apparent that this application for stay in view of the fact that no appeal had been filed and was pending is not maintainable and the stay granted was without jurisdiction and as such is liable to be vacated because, it was an ex-parte stay.

It has been contended by the learned Counsel for the Respondent that stay of eviction order could not be granted by this Court because Rule 5 makes it clear that stay may be granted by the appellate Court in case an appeal is preferred from the decree. In the instant case it may be stated that the decree or order which is sought to be executed was passed by the Rent Controller as back as on 22-3-1972. Thereafter an appeal was preferred to the District Judge, who was the appellate authority and against the dismissal of the same, a revision was filed and which was also dismissed by the High Court on 9-11-1972. A review against that order was also dismissed on 17-1-1973. Therefore, the order of the Rent Controller dated 22-3-1972 became final and it is that decree which is sought to be executed and against which the stay has been obtained. In fact, the appeal which is sought to be filed by the Petitioner in the Supreme Court is ''in respect of the order passed by this Court dismissing the appeal arising out of the proceedings u/s 47 of the Code. Although the order u/s 47 of the Code is a decree but it is not this decree which is sought to be executed. Consequently within the intendment of Sub-rule (1) of Rule 5, a stay cannot be granted of a decree which is not sought to be executed, rather it is a separate proceeding and against which the tenant had come up in appeal and which was dismissed. Hence, no stay of the decree which became final as back as 17-1-1973 can be granted because it is not that decree against which an appeal is being preferred so as to attract the applicability of Sub-rule (1) of Rule 5 of Order 41 of the Code.

The learned Counsel for the Petitioner had contended that in case the provisions of Order 41, Rule 5 were not applicable in the matter of grant of stay in the absence of any appeal having been preferred or pending before the Court this Court has inherent powers u/s 151 of the Code to grant stay in such a matter, where hardship was being caused to the Petitioner and who was to be thrown on the roadside because of the execution taken out by the Respondent. He wanted to move for leave to appeal to the Supreme Court but he had not been made available the copy of the judgment and as such he could not file the grounds of appeal or the application for leave to appeal and in Such a case it was expedient in the interest of justice that the Court should exercise its inherent powers. In my opinion, the provisions of Section 151 of the Code cannot be attracted to such a case where the Petitioner intends to file an application for leave to appeal to the Supreme Court; for that, there is a specific provision, as contained in Order 45 Rule 13 of the Code. At present neither Section 151 nor Order 41 Rule 5 of the Code can be attracted because there is no application for leave to appeal pending before this Court. Therefore, if there is a specific provision for stay in such matters then the applicability of Section 151 would be excluded and for this reliance can be placed on Purna Chand Sahu Vs. Chamra Bariha and Others, . In this view of the matter this application under Order 41 Rule 5 is not maintainable, firstly, because there is no lis pending before this Court so as to give jurisdiction to this Court to grant stay under the aforesaid provisions and, secondly, the decree executed is the one passed by the Rent Controller, and which had become final consequent to the dismissal of the appeal and the review petition on 17-1-1973 and the application made by the Petitioner before this Court is not for stay of execution of the order passed by this Court dismissing the application of the Petitioner made u/s 47 of the Code before the trial Court and affirmed in appeal by this Court by its order, dated December 5, 1975. Stay can only be granted in case of an appeal against the decree sought to be executed. Further, the provisions of Section 151 of the Code also cannot be attracted in the circumstances of the case when there is a specific provision in the Code, like Order 45 Rule 13. Therefore, in my opinion, this petition is wholly misconceived and the ex-parte order passed by this Court, which is sought to be vacated by the Respondent, is without jurisdiction and which I hereby vacate, with the result that the petition fails and is hereby dismissed. Costs easy.