PETITIONER: MULRAJ Vs. RESPONDENT: MURTI RAGHONATHJI MAHARAJ DATE OF JUDGMENT: 02/03/1967 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BACHAWAT, R.S. BHARGAVA, VISHISHTHA CITATION: 1967 AIR 1386 1967 SCR (3) 84 ACT: Stay order-When takes effect. HEADNOTE: While an application of the respondent-landlord for permission to sue for ejectment of his tenant, the appellant, under the U.P. (Temporary) Rent Control Act was pending before a Magistrate, the appellant applied for the transfer of proceedings relating to permission from that Magistrate's Court. On that transfer application an order was passed ,staying further proceedings. This stay order was not communicated to the Magistrate with the result that the Magistrate granted permission to sue. The respondent filed the suit for ejectment where the appellant -raised the plea that the permission granted subsequent to stay order was a nullity as the Magistrate dealing with the matter had lost his jurisdiction thereunder. The trial court accepted the appellant's plea, but High Court in appeal rejected it. In appeal to this court HELD : The appealmust be dismissed. An order of stay inan execution matter is in the nature of a prohibitory order and is addressed to the court that is carrying out execution. It is not of the same nature as an order allowing an appeal and quashing execution proceedings. That kind of order takes effect immediately it is passed, for such an order takes away the very jurisdiction of the court executing the decree as there is nothing left to execute thereafter. But a mere order of stay of execution does not take away the jurisdiction of the court. All that it does is to prohibit the court from proceedings with the execution further, and the court, unless it knows of the order cannot be expected to carry it out. As soon as a stay order is withdrawn, the executing court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been withdrawn. The jurisdiction of the court is there all along. In effect a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. [87G-88D, H] The court may receive knowledge either on receipt of an order of stay from the court that passed it or through one party or the other supported by an affidavit or in other way. [89E-F] The court can always act under s. 151 C.P.C. 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. [90E] What have been said about execution proceedings applies with greater force to stay orders passed in transfer applications. [90H] The above principle may not be applicable where stay is made for ministerial officers. [91D] 85 Bessesswari Chowdhurany v. Horro Sunder Mozmadar (1896-97) 1 C.W.N. 226, Hukum Chand Bold v. Kamalanand Singh, I.L.R. (1906) XXXIII Cal. 227, Liakat Mian v. Padampat Singhania, A.I.R. 1951 Pat. 130, Din Dyal Lakhi Ram v. Union of India, A.I.R. 1954 Punj. 46 and Kasaribada Venkatachalpati Rao v. Maddipatla Kameshwaramma, I.L.R. (1918) XLI Mad. 151, approved. Hukum Chand Boid v. Kamalanand Singh, I.L.R. (1906) XXXIII Cal. 227 and L. Parsotam Saran v. D. Barhma Nand, A.I.R. 1927 All. 401, disapproved. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1938 of
1966.
Appeal by special leave from the judgment and order dated
April 20, 1966 of the Allahabad High Court in Second Appeal
No. 2648 of 1964.
Yogeshwar Prasad and S. S. Khanduja, for the appellant.
Hardev Singh, for the respondent.
The Judgment of the Court was delivered by
Wanchoo, j This is an appeal by special leave against the
judgment of the High Court of Allahabad. Brief facts
necessary for present purposes are these. The respondent
filed a suit against the appellant for eviction from a shop
which the appellant had taken on monthly rent from the
respondent. The suit was filed after permission had been
obtained under the U.P. (Temporary Control of Rent and
Eviction Act, No. III of 1947, (hereinafter referred to as
the Act), in the court of the Munsif in Jhansi. It was
contested by the appellant and one of the points raised
before the trial court was that as the permission to sue had
been granted at a time when there was a stay order, the
Magistrate granting the permission had no jurisdiction to do
so and therefore the permission was a nullity. On that
basis it was contended that the suit should fail for no suit
could continue under the Act without such permission.
The Munsif dismissed the suit. – The respondent then went in
appeal. The appeal court upheld the order of the Munsif
taking the view that the permission granted after the stay
order had been passed was a nullity. The respondent then
came in second appeal to the High Court, and the only point
considered there was whether the permission granted by the
Magistrate was a nullity or not. It may be mentioned that
though the stay order had been passed on September 29, 1961
by the District Magistrate, the Magistrate who was dealing
with the matter of permission, had no knowledge of it when
he granted the permission on October 4, 1961. The question
that arose before the High Court therefore was whether the
permission granted in
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these circumstances could be said to be a nullity. The High
Court held that the stay order could not and did not take
away the jurisdiction of the Magistrate from the moment it
was passed and that as the Magistrate had no knowledge of or
information about the stay order when he granted the
permission on October 4, 1961, that permission was with
jurisdiction and the suit would therefore be maintainable.
As no other point was apparently in dispute in the High
Court it allowed the appeal and granted a decree for
ejectment and rent in favour of the respondent. The
appellant, then obtained special leave from this Court, as
there is some conflict of opinion between the High Courts on
this question.
As we have already indicated, the facts on the question
raised before us are not in dispute. When the application
for permission was pending before Sri Nigam, Magistrate I
Class, who had jurisdiction to deal with that application by
virtue of the authority delegated to him by the District
Magistrate, it appears that the appellant applied for the
transfer of proceedings relating to permission from Sri
Nigam’s court. On that transfer application, the District
Magistrate passed an order staying further proceedings till
the disposal of the transfer application. This order was
not communicated to the Magistrate concerned by the office
of the District Magistrate. Nor does it appear that the
appellant informed the Magistrate of the order of stay with
the, result that on October 4, 1961, the Magistrate gave
permission to the respondent to file a suit for eviction.
When however the respondent filed the suit in the Munsif’s
Court, the appellant raised the question that as a stay
order had been passed on September 29, 1961, the permission
granted on October 4, 1961, was a nullity as the Magistrate
dealing with the matter had lost his jurisdiction
thereunder.
There has been difference of opinion among the High Courts
on the question of the effect of a stay order, particularly
with reference to execution proceedings. The High Courts of
Calcutta, Patna and Punjab have held that in such a case the
stay order takes effect from the moment it is passed and the
fact that the court executing the decree has no knowledge of
it makes no difference and all proceedings taken in
execution after the stay order has been passed are without
jurisdiction. On the other hand, the High Courts of Madras
and Kerala have taken the view that the executing court does
not lose its jurisdiction from the moment the stay order is
passed and that the order being in the nature of a
prohibitory order the court carrying on execution does not
lose its jurisdiction to do so till the order comes to its
knowledge and that proceedings taken in between are not a
nullity. The Allahabad High Court seems to have taken an
intermediate view and has held that where rights’ of third
parties like a stranger auction-purchaser have intervened
the fact that the executing court had no knowledge would
protect third parties.
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The earliest case on the point is Bessesswari Chowdhurany v.
Horro Sunder Mozmadar and others(1). In that case a
Division Bench of the Calcutta High Court held that “an
order staying execution of a decree against which an appeal
is pending is in the nature of a prohibitory order, and as
such would only take effect when communicated. If a
property is sold before such an order is communicated to the
court holding the sale, such sale is not void and cannot be
treated as a nullity”. In Hukum Chand Boid v. Kamalanand
Singh(2), another Division Bench of the same High Court
dissented from the view taken in Besseswari Chowdhurany’s
case(1) and held that an order of stay takes effect from the
moment it is passed and the knowledge of the court to which
it is addressed is immaterial and from the moment the order
is passed the court to which the application is made for
execution has no authority to execute it. It is these two
cases of the Calcutta High Court which are the basis of the
decisions of other High Courts. Some High Courts. as
already indicated, have accepted the view in Bessesswari
Chowdhurany’s case(1) while other High Courts have followed
the view taken in Hukum Chand Boid’s(2) case.
Before we consider the question raised before us, we may
indicate the leading cases on the two sides briefly. The
Patna High Court in Liakat Mian v. Padampat Singhania(3) and
the Punjab High Court in Din Dayal Lakhi Ram v. Union of
India(4) follow Hukum Chand Boid’s(2) case. The Madras High
Court in Kasaribada Venkatachalpati Rao v. Maddipatla
Kameshwaramma(5) follows Bessesswari Chowdhurany’s case(6).
The Kerala High Court in Cheeramparambilalikutty v.
Thalavanaparambilalikutty(6) also follows Bessesswari
Chowdhurany’s case(1). It is unnecessary to refer to other
cases of these courts which were cited before us for they
follow the view taken in these leading cases.
The Allahabad High Court in L. Parsotam Saran v. B. Barhma
Nand(7) , as already indicated, took an intermediate view
and held that where a third party’s interest intervened, the
stay order does not nullify a sale in favour of a third
party.: But where only the parties to the execution
proceedings were concerned it followed the view taken in
Hukum Chand Bold’s case(2).
We are of opinion that the view taken in Bessesswari Chow-
dhurany’s case(1) is the correct one. An order of stay in
an execution matter is in our opinion in the nature of a
prohibitory order and is addressed to the court that is
carrying
(1) [1896-97] 1 C.W.N. 226.
(3) A.I.R. 1951 Pat. 130.
(5)I.L.R. (1918) XLI Mad. 151.
(2)I. L.R. [1906] XXXIII Cal 227.
(4) A.I.R. 1954 Punj. 46.
(6) I.L.R. (196) Ker. 528.
(7) A.I.R. 1927 All. 401.
88
out execution. It is not of the same nature as an order
allowing an appeal and quashing execution proceedings. That
kind of order takes effect immediately it is passed, for
such an order takes away the very jurisdiction of the court
executing the decree as there is nothing left to execute
thereafter. But a mere order of stay of execution does not
take away the jurisdiction of the court. All that it does
is to prohibit the court from proceeding with the execution
further, and the court unless it knows of the order cannot
be expected to carry it out. Therefore, till the order
comes to the knowledge of the court its jurisdiction to
carry on execution is not affected by a stay order which
must in the very nature of things be treated to be a
prohibitory order directing the executing court which
continues to have jurisdiction to stay its hand till further
orders. It is clear that as soon as a stay order is
withdrawn, the executing court is entitled to carry on
execution and there is no question of fresh conferment of
jurisdiction by the fact that the stay order has been
withdrawn. The jurisdiction of the court is there all
along. The only effect of the stay order is to prohibit the
executing court from proceeding further and that can only
take effect when the executing court has knowledge of the
order. The executing court may have knowledge of the order
on the order being communicated to it by the court passing
the stay order or the executing court may be informed of the
order by one party or the other with an affidavit in support
of the information or in any other way. As soon therefore
as the executing court has come to know of the order either
by communication from the court passing the stay order or by
an affidavit from one party or the other or in any other way
the executing court cannot proceed further and if it does so
it acts illegally. There can be no doubt that no action for
contempt can be taken against an executing court, if it
carries on execution in ignorance of the order of stay and
this shows the necessity of the knowledge of the executing
court before its jurisdiction can be affected by the order.
In effect therefore a stay order is more or less in the same
position as an order of injunction with one difference. An
order of injunction is generally issued to a party and it is
forbidden from doing certain acts. It is well-settled that
in such a case the party must have knowledge of the
injunction order before it could be penalised for disobeying
it. Further it is equally well-settled that the injunction
order not being addressed to the court, if the court
proceeds in contravention of the injunction order, the
proceedings are not a nullity. In the case of a stay order,
as it is addressed to the court and prohibits it from
proceeding further, as soon as the court has knowledge of
the order it is bound to obey it and if it does not, it acts
illegally, and all proceedings taken after the knowledge of
the order would be a nullity. That in our opinion is the
only difference between, an order of injunction to a party
and an order of stay to a court. In both cases knowledge of
the
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party concerned or of the court is necessary before the
prohibition takes effect. Take the case where a stay order
has been passed but it is never brought to the notice of the
court, and the court carries on proceedings ignorance
thereof. It can hardly be said that the court has lost
jurisdiction because of some order of which has no
knowledge. This to our mind clearly follows from the words
of O. XLI R. 5 of the Code of Civil Procedure which clearly
lays down that mere filling of an appeal does not operate as
stay of proceedings in execution, but the appellate court
has the power stay of execution. Obviously when the
appellate court orders the stay of execution the order can
have affect only when it is made known to the executing
court. We cannot agree that an order staying execution is
similar to an order allowing an appeal and quashing
execution proceedings. In the case where the execution
‘Proceeding. is quashed, the order takes effect in
immediately and there is nothing left to execute. But where
a stay order is passed, execution still stands and can go on
unless the court executing the decree has knowledge of the
stay order. It is only when the executing court has
knowledge of the stay order that the court must stay its
hands and anything it does thereafter would be a nullity so
long as the stay order is in force.
It is argued that this view would introduce uncertainty
inasmuch us proceedings may go on and it may take sometime-
whether long or short-for the stay order to reach the court.
There is in our opinion no question of uncertainty, even if
we hold that the stay order must come to the knowledge of
the court to which it is addressed before it takes effect.
The court may receive knowledge either on receipt of an
order of stay from the court that passed it or through one
party or the other supported by an affidavit or in any other
way. There is in our opinion no uncertainty by reason of
the fact that the court to which the stay order is addressed
must have knowledge of it before it takes effect for it can
always be proved that the court to which the stay order was
addressed had knowledge of it and that is not a matter which
should really create any difficulty or uncertainty. Once it
is clear that a stay order is in the nature of a prohibitory
order, knowledge of it by the court which is prohibited is
essential before the court is deprived of the power to carry
on the proceedings. As was pointed out in Bassesswari
Chowdhurany’s case(1), “the appellate court has nothing to
do with the execution of the decree; the execution proceeds
under the direction of the court which made the decree and
it has full authority to execute it. An order of stay does
not undo anything which has been done; its utmost affect is
to stop further action in the direction of execution, but it
would only have that effect when it reached the court or
person whose duty it was to obey it.”
(1)(1896-97) 1 C. W. N. 226.
Sup. CI/67–7
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As we have already indicated, an order of stay is as much a
prohibitory order as an injunction order and unless the
court to which it is addressed has knowledge of it cannot
deprive that court of the jurisdiction to proceed with the
execution before it. But there is one difference between an
order of injunction and an order of stay arising out of the
fact that an injunction order is usually passed against a
party while a stay order is addressed to the court. As the
stay order is addressed to the court; as soon as the court
has knowledge of it must stay its hand; if it does not do
so, it acts illegally. Therefore, in the case of a stay
order as opposed to an order of injunction, as soon as the
court has knowledge of it must stay its hand and further
proceedings are illegal; but so long as the court has no
knowledge of the stay order it does not lose the
jurisdiction to deal with the execution which it has under
the Code of Civil Procedure.
Though the court which is carrying on execution is not de-
prived of the jurisdiction the moment a stay order is
passed, even though it has no knowledge of it, this does not
mean that when the court gets knowledge of 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 s. 151 of the Code of Civil
Procedure 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 under 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 under s. 151 of the Code of Civil
Procedure 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 a nullity and in the absence of such
exercise of power by the court executing the decree under S.
151, they remain good for all purposes.
What we have said about execution proceedings applies with
greater force to stay orders passed in transfer
applications, as ‘in the present case. In the case of
execution proceedings at
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any rate there is an appeal in which a stay order is passed;
the transfer proceedings are collateral _proceedings and
even though the superior authority may have the power to
stay it cannot deprive the inferior authority having
jurisdiction of that jurisdiction, unless the inferior
authority is apprised of the order by the superior
authority. In the present case the order of stay never came
to the knowledge of the Magistrate concerned till he gave
the permission on October 4, 1961. Later on the District
Magistrate himself dismissed the transfer petition. The
order was not brought to the knowledge of the Magistrate
concerned by the appellant at any time. Nor did he ever
apply to the Magistrate to set aside the permission passed
in ignorance in the interest of justice. In these
circumstances, the appellant cannot challenge the permission
as a nullity in the suit which has been brought on the basis
of that permission.
We may, however, add that what we have said above refers
only to proceedings being carried on by courts or
authorities after the stay order has been passed and before
they have knowledge of it. But this may not apply in a case
where stay is made for ministerial officers, as for example
in the case of a court asking a bailiff not to sell and the
bailiff selling without knowledge of the order of the court
prohibiting it to carry on the sale. The position in such a
case may be different, but as to that we express no final
opinion in the present appeal.
The appeal therefore fails and is hereby dismissed with
costs.
Y.P. Appeal dismissed.
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