Union of India (UOI) and Another vs Vishwa Nath Sud and Another

R.S. Pathak, C.J.—This is an application for stay of execution of a decree of a learned single Judge of this Court which is under appeal in this Court.

A claim was made by the first Respondent against the Appellants on the basis of a contract between the parties. A counter claim was made by the Appellants. Pursuant to the terms of the contract the dispute was referred to arbitration, and the arbitrator made an award on March 20, 1972. The award was challenged by both the parties, and the matter came on before a learned single Judge of this Court who by his judgment and decree dated December 3, 1974 dismissed the objection filed by the Appellant and allowed in part the further claim of the first Respondent. In the result, the first Respondent has become entitled to an amount of Rs. 30,428. An appeal against the decree is pending in this Court. During the pendency of the appeal the aforesaid application for stay of execution of the decree has been made by the Appellants. That application came on for hearing before a single Judge of this Court and an objection was raised that the application could be heard by a Division Bench and not by the single Judge. The matter was therefore referred to a larger Bench for decision, and it is now before us.

Under Order 41, Rule 5(1) of the CPC an application for stay of execution of a decree is made to the appellate court. The expression "appellate court" refers to the court to which an appeal lies from the decree of the .trial court the decree whose execution is sought to be stayed. It is apparent that the stay application in such a case is considered in the course of the appellate jurisdiction of the court.

Now, in dealing with the question before us, it is necessary to remember that the jurisdiction exercised by the learned single Judge in making the decree under appeal was the original jurisdiction conferred on this Court in terms of Section 5(2) of the Delhi High Court Act applied by Sections 23 and 25 of the State of Himachal Pradesh Act. Section 10(1) of the Delhi High Court Act provides:

(1). Where a single Judge of the High Court of Delhi exercises ordinary original civil juridsiction conferred by Sub-section (2) of Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court.

This section, pursuant to the aforesaid provision of the Himachal Pradesh Act, is also applicable to appeals from the judgment of a single Judge of this Court delivered in the exercise of its ordinary original civil jurisdiction. If the appeal lies to a Division Court of the High Court, plainly the appellate jurisdiction cannot be exercised by a single Judge of the High Court. It is a Division Court of the High Court which is the "appellate Court" for the purposes of Order 41 Rule 5(1) of the Code in respect of an application for stay of execution of a decree made by a single Judge exercising ordinary original civil jurisdiction.

Reliance has been placed by the learned Advocate-General on Clause (xv) of Rule 1 of Chapter III of the Rules of Court, which provides that an application which under the Rules is not expressly required to be made to a Bench of one or more Judges and which is not an application falling under any of the preceding clauses may be heard and disposed of by a Judge sitting alone. The learned Advocate-General contends that this residual Clause (xv) is sufficient to cover the case before us and therefore the stay application can be disposed of by a Judge sitting alone. The question is whether the clause can be pressed into service. It was contended that the Rules of Court must be attributed to Section 122 of the Code of Civil Procedure, and that therefore Clause (xv) must be deemed to be an amendment of Order 41, Rule 5 (2) insofar as the forum for filing a stay application is concerned. In our opinion the contention has no force. Section 122 of the Code empowers a High Court to make rules regulating its procedure and by such rules to annual, alter or add to any of the rules in the First Schedule. There is no doubt that if the jurisdiction u/s 122 is exercised by a High Court it can modify Order 41, Rule 5 of the Code. But before it can be said that Clause (xv) has been made in the exercise of the powers u/s 122 it must be shown that while framing . that provision the High Court followed the conditions prescribed by the Code for making rules u/s 122. Section 123 requires the constitution of a Rule Committee for the purpose of formulating the rules. u/s 124 the Rule Committee is obliged to make a report to the High Court, and thereafter when the High Court finalises the rules so proposed they have to be forwarded to the State Government u/s 126 for its approval. Thereafter, pursuant to Section 127 the rules are to be published in the Official Gazette. There is no material on the record before us and nothing has been indicated by the learned Advocate-General in that behalf, to show that Clause (xv) of Rule 1 of Chapter III-B of the Rules of Court was made in compliance with the procedure mentioned above. We find it difficult, therefore, to hold that the said clause can be attributed to the powers of the High Court u/s 122 of the Code. The conclusion is reinforced by the circumstance that when the High Court did make rules u/s 122 of the Code-Those rules are to be found in Chapter XXI of Volume I of the Rules of Court-While the High Court made several rules amending or altering the rules in the First Schedule including certain rules under Order 41 of the Code, no reference has been made to any provision whatever of Order 41, Rule 5 of the Code. It appears clearly from all this that the High Court did not intend to modify the terms of Order 41, Rule 5 (1). Clause (xv) of Rule 1 of Chapter III-B of the Rules of Court cannot, therefore, be construed as modifying Order 41, Rule 5(1). We are, therefore, of opinion that Order 41, Rule 5 as enacted in the First Schedule must prevail and Clause (xv) can be of no assistance in the matter.

Turning to the stay application on its merits we are satisfied after hearing learned Counsel for the parties that the execution of the decree should not be stayed but the Respondent No. 1 should be entitled to payment of the decretal amount only on furnishing security to the satisfaction of the Registrar of this Court for repayment of the amount in case the appeal is allowed. We order accordingly.