Ramanathan Chetty and Others minor by Guardian Alagammai Achi vs Kasi Visvanathan Chetti and Arunachalam Chetti

Sadasiva Aiyar, J.—The facts have been set out in the judgment of my learned brother and it is unnecessary for me to repeat them. The

petition put in by the 1st 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 1st defendant, but as independent persons who owned shares in the

property 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 56,000 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 Chetti who has not been examined. The want of bidders, I

am inclined to hold was due to the litigious nature of the 1st defendant who had set up his mother-in-law to file claim petitions on behalf of his (the

1st 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 bona fide object of prosecuting any tenable claim. Purchasers will naturally be

chary of making bids for the property belonging to the 1st defendant and his sons, as they are sure to purchase a protracted litigation along with the

property. A.A.O. No. 210 of 11 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 A.A.O. No. 211 of 11, this appeal arises out of a petition filed u/s 47, C.P.C. and also under Order XXI, Rule 90 by the 1st

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 A.A.O. No. 210 of 11. The contention u/s 47 of the C.P.C. 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 C.R.P. 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 (20th July 1910) an exparte order was

obtained from a Judge of this Court stopping all further proceedings in the matter of bringing the attached house 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 sale. In

Muthukumarasami Rowthar Minda Nayinar v. Kuppusami Aiyangar ILR (1909) M. 74 it was held following Bissesswafi Chowdhrany v.

Hurrosunder Muzumdar (1897) I.C.W.N. 226 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 if 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 the case in Bissessivari Ghowdhrany v. Hurrosunder Muzumdar

(1897) I.C.W.N. 226 It seems to me that, unless the order of stay or order of injunction passed by the Superior Court made it a condition that

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) an order

suspends the power and jurisdiction of the lower Court to conduct further proceedings from the moment when the order of the 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 the case of Satinath

Satidar v. Batanmani Nashar (1911) 15 C.L.J. 335 and Hamchandrahar v. Mathur Santal (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 20th July 1911 and I would direct that

a fresh sale be held after fresh proclamation. A sale held without jurisdiction may, in a sense be said to be a sale vitiated by material irregularity, but

it is unnecessary to rely on Section 311 (Order 21, Rule 90) in order to set aside such a sale, that is, it is unnecessary to prove substantial injury

also The irregularity is so grave that, in the words of their Lordships of the Privy Council in Malekarjan v. Narahari (1900) 25 Bom, 337 "" it is

sufficient by itself, to entitle"" the judgment-debtor "" to vacate the sale. "" Parties will bear their respective costs in both courts, I 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 the time 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 the 17th

July and concluded on the 21st July 1911.

On July 20th an order was passed in the High Court directing 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 2nd 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 3rd.

Applications to set aside the sale were dismissed by the Subordinate Judge on August 29th, 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 mere 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 decision in Muthukumarasami Rowther Minda Nayanar v. Kuppusami Aiyyangar

ILR (1909) M. 74 Bessessivari Chowdhrary v. Hurrosoondar Mazoomdar (1897) 1 C.W.N. 226 Hukumchund v. Kamalanand Singh ILR

(1906) C. 927 and Manyan v. Mansingh ILR (1880) A. 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, C.P.C. (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 supersede--as 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 or 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 Hukumchand v. Kamalanand Singh ILR (1906) C. 927 that there is

no reason why the operation of an order of the High Court should be made contingent, say, upon the due performance of the duties of the Post

Office.

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

ordered that it should not be done. In the same case, Mookherjee, 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 L.C. in re the Bisca Coal and Iron Company (1861) 31 L.J. Ch. 429. "" I shall

abide by the 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 Muthukumarar swami Rowthar

Minda Nayanar v. Kuppusami Aiyangar ILR (1909) M. 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 that 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 Chowdhrany v. Horroo Sender Mozwmdar 1897 1 C.W.N. 226 it was held that a sale was not void in law if held under

circumstances in which there was nothing to fix the decreeholder with any knolwedge 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 could not be so if the court and the decree-holder were aware of the order of postponement. As stated in Mr. Freeman''s book, p. 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 diregarding 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 Hemohandrakar v. Mathursanthal (1912) 16 C.W.N. 1031 a case where a

Subordinate Court refused to take any notice of a telegram from the petitioner''s Vakil in the High Court intimating the orders of the High Court

Similarly in Satinath Sikdar v. Ratanmani Nashir (1911) 15 C.L J. 335 where a District Munsif refusedto act on an affidavit accompanied by a

letter written by a Vakil of the High Court that the High Court had ordered an 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 to reach any person who behaved in such a manner, and that the order was wholly without jurisdiction and should be Cancelled.

In Mianjan v. Mansingh ILR (1830) A. 686 it was held 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 Nonid Singh v. Musswmat Sohunkoer (1872) 4 p. N.W.P.H.C. Rep. 135 the

sale was not treated as void but was set aside by the court treating the order for postponement as invalidating the sale notification, in the

publication of which there was consequently considered to be an 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 were likely to be rendered

infructuous in consequence of the order already made.

In this case also the auction lists printed in A.A.O. 211 of 11 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-debtor 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 will allow both these appeals to the extent of setting aside the sales held on July 20th and 21st, and 1

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.