Ramanathan Chetty and Others vs Arunachellam Chetty

Sadasiva Ayyar, J.—The facts have been set out in the judgment of my learned brother, and it is unnecessary for me Civil Miscellaneous

Appeals Nos. 210 and 211 of 1911. to repeat them. The petition put in by the first defendant''s sons to set aside the Court auction sale is filed by

them not on the ground that they are also parties to the decree (in which the sale was held) as represented by their father, the first defendant, but as

independent persons who owned shares in the property A sold and who are entitled in consequence to file a petition under Order XXI, Rule 90

(old, Section 311) to set aside the sale on the ground of material irregularity and consequent substantial injury. I agree with the Lower Court in its

conclusion that there was no material irregularity in publishing and conducting the sale except that the sale was conducted and concluded after the

High Court''s order of stay (which is of course a very material irregularity). No substantial injury is proved to have been caused by any such

material irregularity. The property was estimated by the Amin as worth only 58,000 and odd rupees and it was sold for 68,000 and odd rupees.

The first defendant from his conduct in these execution proceedings has clearly proved himself to be a cunning litigant, and the affidavit produced

on his behalf is not reliable even though supported by a telegram from one Palaniappa Chetty, who has not been examined. The want of bidders, I

am inclined to hold, was due to the litigious nature of the first defendant who had set up his mother-in-law to file claim petitions on behalf of his (the

first defendant''s) sons, to bring a suit on their behalf, to put in a revision petition on their behalf against the claim order and to do several other acts,

more in order to delay and defeat the decree-holder than with the bond fide object of prosecuting any tenable claim. Purchasers will naturally be

chary of making bids for the property belonging to the first defendant and his sons, as they are sure to purchase a protracted litigation along with

the property. Appeal Against Order No. 210 of 1911 in which the first defendant''s sons are the appellants must therefore in my opinion be

dismissed. The parties will bear their respective costs. Coming to Appeal against Order No. 211 of 1911, this appeal arises out of a petition filed

u/s 47, Civil Procedure Code, and also under Order XXI, Rule 90, by the first defendant himself. So far as his application to set aside the sale is

grounded on irregularity and substantial injury under Order XXI, Rule 90, it cannot be granted for the reasons already set out by me in Appeal

against Order No. 210 of 1911. The contention u/s 47 of the CPC is based on the following facts:

The first defendant''s sons put in a claim petition for release of their shares in the attached houses. The Subordinate Judge dismissed the claim

petition on the 15th July 1911. On the 20th July 1911 Civil Revision Petition No. 378 of 1911 was filed in the High Court to revise the

Subordinate Judge''s order dismissing the claim petition. On that same date (the 20th July 1911) an ex parte order was obtained from a Judge of

this Court stopping all further proceedings in the matter of bringing the attached houses to sale in execution of the decree. Notwithstanding the

stay-order, the sale of the properties was concluded on the 21st July 1911. The question is whether such a sale is not wholly illegal as having been

conducted by the Subordinate Judge''s Court in violation of an order from a superior Court staying the dale. In Muthukumarasami Rowther Minda

Nayinar v. Kuppusami Aiyangar I.L.R., (1910) Mad., 74, it was held following Bessesswari Chowdhurany v. Horro Sundar Mozumdar I.L.R.,

(1910) Mad., 74, that the stay-order passed by a superior Court does not become effective till it is communicated to the inferior Court, and that

an execution sale made by the inferior Court in ignorance of the stay-order is a legally valid sale. With the greatest respect, I am unable to agree

with this decision though it is in accordance with Bessesswari Chowdhurany v. Horro Sundar Mozumdar I.L.R., (1910) Mad., 74. It seems to me

that, unless the order of stay or order of injunction passed by the superior Court made it a condition that order shall take effect only from the date

of its communication to the Lower Court, or to the party enjoined (as the case may be) such an order suspends the power and jurisdiction of the

Lower Court to conduct further proceedings from the moment when the order of superior Court was passed. I do not think that I could put the

reasons for this view better than they have been enunciated in the judgments in Sati Nath Sikdar v. Ratanmani Naskar (1912) 15 C.L.J., 335 and

Hem Chandra Kar v. Mathura Santhal (1912) 16 C.W.N., 1031, and I shall therefore not attempt it. In the result, I would set aside the sales

concluded on the 21st July 1911, by the Subordinate Judge''s Court of Ramnad as having been held without jurisdiction after the passing of the

order of this Court staying the sale, which order was dated the 20th July 1911, and I would direct that a fresh sale he held after fresh proclamation.

A sale held without jurisdiction may, in a sense ho said to be a sale vitiated by material irregularity, but it is unnecessary to rely on Section 311

(Order XXI, Rule 90) in order to set aside such a sale, that is, it is unnecessary to prove substantial injury also; but the irregularity is so grave that,

in the words of their Lord-ships of the Privy Council in Malkarjun v. Narhari I.L.R., (1902) Bom., 337 ""it is sufficient by itself, to entitle"" the

judgment-debtor ""to vacate the sale."" Parties will hour their respective coats in both Courts. [ might be permitted to remark that in respect of a stay

order passed by an appellate Court, it seems to me advisable, in order to avoid future complicated litigation to provide usually that the order shall

take effect only from when the order is communicated to the lower Court which has to guide itself in accordance with such order.

Spencer, J.

The facts, which are not denied, are that a sale of the appellant''s immovable properties in execution of decrees was commenced on July 17 and

concluded on July 21, 1911.

On July 20 an order WAS passed in the High Court directing an ad interim stay of the sale. A telegram was sent by the vakil in Madras to the

vakil in Madura informing him of the result of the petition in the High Court, and it reached Madura soon after noon the same day, The Subordinate

Court of Ramnad was thereupon moved by a petition accompanied by affidavit to stay the sale.

The Subordinate Judge refused to act on the telegram when he had not received official confirmation of the information, rejected the application

and directed the sale to proceed. The sale was completed on the following day and was subsequently confirmed on September 2 after the High

Court''s stay order had been received. Meanwhile, the stay order having proved ineffective was cancelled by the High Court on August 3.

Applications to set aside the sale were dismissed by the Subordinate Judge on August 29, and the judgment-debtor and his sons now appeal.

Arguments have been addressed to us on the questions (1) whether the stay order of the High Court took effect from the time when it was

pronounced or from the time when it was officially communicated to the Court under whose orders the sale was held, (2) whether the sale that was

completed in spite of such an order was thereby invalidated, or whether a mare irregularity has been committed for which the judgment-debtors

must prove that they have sustained substantial injury before they can claim to have the sale set aside.

The first of these questions has been the subject of judicial decisions in Muthukumarasami Rowther Minda Nayinar v. Kuppusami Aiyangar

I.L.R., (1910) Mad., 74, Bessesswari Chowdhurany v. Horro Sundar Mozumdar (1893) 1 C.W.N., 226, Hukum Chand Boid v. Kamalanand

Singh I.L.R., (1906) Calc., 927, and Mian Jan v. Man Singh I.L.R, (1880) All., 686.

In the above-mentioned judgment of this High Court the earlier decision of the Calcutta High Court which declared that an order of an appellate

Court u/s 545, CPC (now Order XLI, Rule 5) to stay execution of a decree from which an appeal is pending, being of the nature of a prohibitory

order, would only take effect when communicated, was followed in preference to the later decision of the same High Court.

In Freeman on Executions, Articles 32 and 33, it is stated: A supersedeas, properly so called, is a suspension of the power of the court below

to issue an execution on the judgment or decree appealed from; or, if a writ of execution has issued, it is a prohibition emanating from the court of

appeal against the execution of the writ. It operates from the time of the completion of those acts which are requisite to call it into existence."" The

effect of an execution issued pending a stay thereof granted by the Court is considered and declared to be, of course, irregular and capable of

being quashed on motion, The author then proceeds to make the following observation: But it may happen that for want of such motion the

execution is never arrested, and property is seized and sold thereunder, in such case, as in all other cases of irregular execution, the authorities are

conflicting, some asserting that the writ, having erroneously issued, remains in force till the error is corrected, and others maintaining that, the court

for the time being ""having no power to issue the execution, the writ is void.

I consider that there is much force in the observation of Woodroffe, J., in Hukum Chand Boid v. Kamalanand Singh I.L.R., (1906) Calc., 927

that there is no reason why the operation of an order of the High Court should be made contingent, gay, upon the due performance of the duties of

the Post Office.

To adapt the words of that learned Judge to the circumstance of the present ease, before the lower Court completed the sale, this Court had

ordered that it should not be done. In the same case, Mookerjee, J., observed that the moment that the High Court has made an unconditional

order for stay of execution, it becomes an operative order and suspends the power of the Subordinate Court to carry on further the execution

proceeding.

The same idea found expression in the words of Westbury Lord Chancellor in In re the Risca Coal and Iron Company (1861) 31 L.J. Oh.,

429: ""I shall abide by a rule of convenience; certainty in the matter is convenience; certainty you attain by abiding by the date of the order;

uncertainty you introduce when you depart from that date. A variation from the common rule of abiding by the record is introduced by a departure

from that date. Great laxity of practice would be introduced and encouraged by a departure from that date.

It is not necessary in these proceedings that we should go to the length of deciding whether the view taken in Muthukumaraswami Rowther

Minda Nayinar v. Kuppusami Aiyangar I.L.R., (1910) Mad., 74, that the order only became effective) when communicated to the Subordinate

Court was right or wrong. The circumstances of that case were sufficiently dissimilar to distinguish it from the present case. In than case there was

no communication of the order received at all when the sale took place. In this case the Court had information, though of an unauthenticated

character, and it was moved to stay the sale.

In Bessesswari Chowdhurany v. Horro Sundar Mozumdar (1892) 1 C.W.N.,226, it was held that a sale was not void in law if hold under

circumstances in which, there was nothing to fix the decree-holder with any knowledge that the sale was ordered to be postponed; the Court

executing the decree knew nothing of it, there was a valid subsisting order for sale and the sale took place in pursuance of that order. It is implied

that it would not be so if the Court and the decree-holder ware aware of the order of postponement. As stated in Mr. Freeman''s book at page

125 The plaintiff and the officer charged with the execution of a writ, on being informed of a stay of execution, whether resulting from an order of

Court or from such a compliance with the law as to create such a stay, should discontinue their proceedings. If they persist in disregarding the stay

and in acting under the execution, they are no longer entitled to its protection.

I am decidedly of opinion that the Lower Court in the present instance acted injudiciously in not postponing the sale in order to ascertain the

truth of the information brought to its notice that the High Court had directed the sale to be stopped, if any doubt was felt as to the authenticity of

the telegram.

This was the view taken by the Calcutta High Court in Hem Chandra Kar v. Mathura Santhal (1912) 16 C.W.N., 1031, a case where a

Subordinate Court refused to take any notice of a telegram from the petitioners'' vakil in the High Court intimating the orders of the High Court.

Similarly in Sati Nath Sikdar v. Ratanmani Naskar (1912) 15 C.L.J., 335, where a. District Munsif refused to act on an affidavit accompanied by

a latter written by a vakil of the High Court that the High Court had ordered on ad interim stay of proceedings for the ascertainment of mesne

profits, it was held that the act of the Munsif amounted to a contempt of the authority of the High Court, and that the arm of the High Court was

long enough ho reach any person who behaved in such a manner, and that the order was wholly without jurisdiction and should be cancelled.

In Mian Jan v. Man Singh I.L.R., (1880) All., 686, it was hold that a sale held notwithstanding an order of postponement was unlawful and

invalid and should not have been confirmed seeing that it was wholly illegal In Nonidh Singh v. Mussumat Sohun Kooer (1872) 4 N.W.P.H.C.R.,

135 the sale was not treated as void but was set aside by the Court treating the order fur postponement as invalidating the sale notification, in the

publication of which there was consequently considered to be on irregularity. This course must be adopted here. There can be no doubt that a

substantial rumour that the High Court had ordered that the sale should not proceed was calculated to affect the freedom with which intending

bidders would be tempted to come forward and offer bids, if they possessed a knowledge that the whole proceedings wore likely to be rendered

infructuous in consequence of the order already made.

In this case also the auction lists printed in Civil Miscellaneous Appeal No. 211 of 1911 show that the plaintiff''s vakil was the only bidder on

the 20th and 21st July. I therefore think that there is ground to suppose that the judgment-debtors sustained substantial injury by the properties

sold on these two days being knocked down to the plaintiff, The Subordinate Court may also be treated as having acted without jurisdiction when

it continued a sale which the High Court had ordered to be stopped. I would allow both these appeals to the extent of setting aside the sales held

on July 20tb and 21st, and I would order the parties in these appeals to bear their respective costs in both Courts in consideration of the

obstructive attitude of the judgment-debtors throughout the execution proceedings.