Ramadass and Another vs Paramasivam Pillai and Another

Nainar Sundaram, J.—These two revisions arise in this way. The petitioners are the defendants in the suit. The respondents are the plaintiffs.

The plaintiffs have obtained a decree in a suit for recovery of possession. An appeal has been preferred by the defendants as indigent persons.

Pending the requisite application to prefer the appeal as indigent persons, the defendants sought for stay of the decree of the first court in C.M.P.

No. 1426 of 1984. Initially there was an order of interim stay. Before the communication of the order of interim stay, the plaintiffs in execution,

have taken delivery on 20-2-1984. The defendants filed the two applications-one not to record delivery and another for re-delivery. These

applications have been dismissed by the court below, and these two revisions are directed against the orders of the court below.

Mr. K. Venkataraman, learned Counsel for the defendants-petitioners herein would submit that though the order of interim stay was not

communicated to the Court below, at the time, delivery in execution was effected, subsequently it get communicated and the court is not powerless

to set right matters taking note of the order of stay and ordering re-delivery. In this behalf, he places reliance on the pronouncement of the

Supreme Court in Mulraj Vs. Murti Raghonathji Maharaj, : . The said pronouncement does support the proposition with regard to the power of

the first court which acted at a stage when an order of stay passed by the higher court did not get communicated to it, to set right proceedings,

which it came to pass between the date of the order of stay of the high Court and the date of the communication of the same to it. The

observations in paragraph 11 of the pronouncement of the Supreme Court which runs as follows, are relevant:

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 mean that when the court gets knowledge of its, 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 Section 151, C.P. Code 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 u/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 that 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 u/s 151 of the C.P. Code 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 nullity and in

the absence of such exercise of power by the court executing the decree u/s 151, they remain good for all purpose.

Following the above pronouncement of the Supreme Court, Paul, J. in Palanisami Chettiar v. Jeevaratnammal, concisely reported in 1976

T.L.N.J.150, has also opined that u/s 151 C.P.C. the court in those circumstances should set aside the proceedings taken between the time when

it was brought to the notice of the Court, if asked to do so, and it considered that it is necessary in the interests of justice that the interim

proceedings should be set aside. Mr. T. Somasundaram, learned Counsel appearing for the plaintiffs, while not disputing the principle set down in

the above pronuncements, would contend that on the facts of the case, it is not just and proper and would not be in the interest of justice to order

re-delivery. Learned Counsel for the plaintiffs would submit the question of stay of the decree of the first court itself came up for consideration

before Singaravelu, J. in C.M.P. 1426 of 1984 along with the other applications and he points out that the learned Judge did not find a warrant to

continue the order of interim stay. Learned Counsel for the plaintiffs places reliance on the following observations in paragraph of the order of

Singaravelu, J:

With reference to application No. 1426 of 1984, which is for stay of the execution of the decree in O.S.565 of 1981, there is no justification for

granting interim stay on the facts of the case. Pauper applicants herein have set up an agreement of sale which has been negatived by the trial

Court. The suits for damages have also been decreed. Therefore, they have neither paid the rent nor damages during the pendency of the suit. In

fact their suit O.S.868 of 1973 for specific performance or in the alternative for the return of the amount was dismissed as early as on 10-10-1975

and it was also confirmed in the appeal by the High Court. True, the appeal has been filed in forma pauper is, but this is not a fit case for granting

interim stay of delivery of possession especially when the properties have already been delivered on 20-2-1984. Consequently, C.M.P.1426 of

1984 is dismissed for present.

The proposition that the proceedings taken in the interregnum between the actual date of the order of stay granted by the higher court and the

date of its communication to the court below, can in appropriate cases be set aside, may be taken to be a settled one in view of the

pronouncements of the Supreme Court referred to above. But the discretion of the first Court on the question as to whether it should set aside such

proceedings is not completely erased out and it cannot be stated that in all cases where the first court acted in ignorance of the order of stay

granted by the higher court, on account of gap in communication its proceedings must ipso facto fall to the ground without any further enquiry with

regard to the propriety or otherwise of setting aside the same. The features referred to in the order of Singaravelu, J. are to a very great extent

indicative of the undesirability and the impropriety of continuing the stay of the decree of the court below in favour of the defendants, who have

preferred the appeal and pending the appeal, and the learned Judge could not be stated to have acted by the sole fact that subsequently delivery

had been taken. The discussion of the learned Judge points out that relevant factors weighed with him on the question of continuance of the stay. In

my view, hence this is not a case, where there should be redelivery and the matter could not be brought within the ambit of serving the interests of

justice. Hence, I have to sustain the orders passed by the Court below, and accordingly, these two revisions are dismissed. There will be no order

as to costs.