1. The appellant bought on the 14th May 1904 a putni taluk at a sale for arrears of rent. The respondents held a darputni in certain mauzas in the putni mehal. The appellant got possession. The respondents then brought a suit to set aside the sale. A decree was passed in their favour on the 24th August 1905 ordering that they should be put back into possession. On the 14th September the decree was signed and on the same day the respondents with haste applied for and obtained (notwithstanding an application by the respondents for stay of delivery in order to enable him to move this Court) an order for delivery of possession of the villages comprised in their durputm. On the 18th September an appeal, which is now pending, was filed in this Court. On the same date the appellant obtained a rule, No. 3423, under Section 545 of the Code calling upon the respondents to show cause why delivery of possession should not be stayed pending the hearing of the appeal. The rule further ordered that in the meantime and pending the hearing of this rule, all further proceedings should be stayed. Before however the rule reached the Lower Court, but after it had been granted, possession was obtained by the respondents. As Section 545 does not apply after execution has been carried out, the appellant, in consequence of the actual delivery of possession, obtained another rule, No. 3443, (which together with the former rule is now before us) to show cause why security should not be taken from the respondents for the due performance of any decree, which may be made by this Court in the appeal. The second application purported to be made under Section 546.
2. It is not necessary for me to discuss the merits of the case as the learned pleader for the respondents has consented to the form of the order, which we pass, provided that we are of opinion that we have power to make it. He has however contended that we have not. He submits that Section 546 does not apply, that there is no other section which does, and that our powers are limited to what the Code expressly says may be done. I think the argument is sound so far as it disputes the applicability of Section 546. That section has reference to the case where an order has been made for execution and the execution is pending or about to be given effect to. It does not apply where the order for execution has been actually carried out and where, as in the present case, the property in suit has actually been delivered under the order made; for it cannot be said when a decree has been executed that the respondents are going to enforce any order for execution. They have already done so. In point of fact there is in such case, no order for execution at all. It was accordingly held under Section 36, Act XXIII of 1861, which corresponds to Section 546 that after property, the subject of litigation, has been given over in execution of a decree to the plaintiff it is not within the scope of this section to exact security for the restitution of such property in the event of a successful appeal, Matisukhmm Purshotam v. Javarevohu (1870) 7 Bom. H.C.A.C.J. 122. This is also shown to be the case by the words of Section 546 “which may be taken in execution” that is, in future, not “which may be or may have been taken in execution”, and by the nature of the provision itself, the intention being to enable the Court to fix terms upon the party taking out execution, the penalty for non-compliance with such terms being that the order in such case will not be allowed to be carried out. Section 546 therefore does not apply. But then it is argued that, if that be so, the appellant is out of Court as there is no express provision of the Code which allows of an application of this nature. In other words it is contended that the Court has no powers in matters of procedure other than those expressly conferred by the Code. This argument assumes that the Code was intended to be and is exhaustive. It is one with which in previous judgments I have had to deal, it having been then as now (and as appears not uncommonly to be the case) thought that it is sufficient (without anything more) to defeat an application or to reverse an order, that no precise section of the Code can be cited as an authority for it. For my part I am always slow to believe that the Court’s powers are unequal to its desire to order that which it believes to be just. As was said in Durga Bihal Das v. Anoraji (1894) I.L.R. 17 All. 29, 31 the Code is not exhaustive, there are cases which are not provided for in it, and to adopt the observations made in that case I decline to believe that those are cases, where this Court must fold its hands and allow injustice to be done. With the exception of a passing observation of Strachey C. J. in Habib Bakhsh v. Baldeo Prasad (1901) I.L.R. 23 All. 167, 173, I am not aware of any authority, which has laid down that the Code is exhaustive. The essence of a Code’ no doubt is to be exhaustive on the matters in respect of which it declares the law. On any point specifically dealt with by it the law must be ascertained by interpretation of the language used by the Legislature. In respect of such matters the Court cannot disregard or go outside the letter of the enactment according to its true construction. The Code therefore binds all Courts so far as it goes. It does not however affect previously existing powers, unless it takes them away. Further the law cannot (as pointed out by Sir Barnes Peacock C. J.) make express provisions against all inconveniences so that their dispositions shall express all the cases that may possibly happen, and it is therefore the duty of a Judge to apply them not only to what appears to be regulated by their express provisions, but to all the cases to which a just application of them may be made and which appear to be comprehended, either within the express sense of the law or within the consequences that may be gathered from it. Hurro Chunder Roy Choicdhry v. Shoorodhonee Debia (1868) 9 W.R. 402, 406. The Code does not as I have already had occasion to hold, Punchanon Singh v. Kunuklota Barmoni (1905) 3 C.L.J. 29 affect the power and duty of the Court, in cases where no specific rule exists, to act according to equity justice and good conscience, though in the exercise of such power it must be careful to see that its decision is based on sound general principles and is not in conflict with them or the intentions of the Legislature. There are also matters, and I do not now deal with them, in which a question may arise whether the right to make an application or the exercise of a power is derived entirely from express legislation, as in the case of the right to prefer and entertain an appeal or to award costs, it being a matter of dispute in the latter case whether a question of costs is one of procedure or one affecting vested rights. The Court has, therefore, in many cases, where the circumstances require it, acted upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration, for which it alone exists. It has thus been held that, although the Code contains no express provision on the matters hereinafter mentioned, the Court has an inherent power ex debito justilice to consolidate; postpone pending the decision of a selected action; and to advance the hearing of suits; to stay on the ground of convenience cross suits; to ascertain whether the proper parties are before it; to enquire whether a plaintiff is entitled to sue as an adult; to entertain the application of a third person to be made a party; to add (Section 32 not being exhaustive) a party; to allow a defence in forma pauperis; to decide one question and to reserve another for investigation, the Privy Council pointing out that it did not require any provision of the Code to authorise a Judge to do what in this matter was justice and for the advantage of the parties; to remand a suit in a case to which neither Section 562 nor Section 566 applies; to stay the drawing up of the Court’s own orders or to suspend their operation, if the necessities of justice so require; to stay, apart from the question whether the case falls within Section 545, the carrying out of a preliminary order pending appeal; to stay proceedings in a lower Court pending appeal and to appoint a temporary guardian of a minor upon such stay; to apply the principles of res judicata to cases not falling within Sections 13 and 14 of the Code and so forth. These instances (and there are others) are sufficient to show, firstly that the Code is not exhaustive and, secondly, that in matters with which it does not deal, the Court will exercise an inherent jurisdiction to do that justice between the parties, which is warranted under the circumstances and which the necessities of the case require.
3. I hold therefore that the mere fact that there may be no express provision in the Code, which meets the present case, is not in itself a bar to the grant of the application. It still however remains to be seen whether, apart from this, the case is one in which we should interfere.
4. It was doubtless held in the decision already referred to, Mansukram Purshotam v. Javarevohu (1870) 7 Bom. H.C.A.C.J. 122, that the present application was neither within the scope of the corresponding section in the Act of 1861 nor in the power of the High Court, That decision appears however to have been based on the case of Joynarain Patur v. Russeek Mohun Bannerjee (1866) 8 W.R. 144, which however was dissented from in Sooruj Monee Dayee v. Sudanund Mohapattur (1869) 12 W.R. 296, Juggo Lall Oopadhya v. Jankee Beebee (1872) 17 W.R. 521, which are based on the decision of the Privy Council in Mussumat Jariutool Butool v. Mussumat Hoseinee Begum (1865) 10 Moo. I.A. 196 an apparent authority for the power of the Court to order security, although possession of the property in dispute has been already obtained without the giving of security. It was so regarded more recently by the Madras High Court: Narayanan Chetti v. Arunachellam Chetti (1895) I.L.R. 19 Mad. 140, 142. It is true that these cases refer to appeals to the Privy Council and the provisions contained in section 608 or the Regulation, which previously took its place. It is also the fact that clause (d) of section 608 gives the Court very general powers, but the principle of the earlier cases under the Regulation would appear, to be as equally applicable to appeals to this Court, as to the Privy Council. Farther a decree of reversal necessarily carries with it the right to restitution of all that has been taken under the erroneous decree in the same manner as an ordinary decree carries with it a right to have it executed. This is the principle embodied in Section 583. There is, however, apart from the appointment of a receiver, no provision whereby before such a decree a decree-holder, who has properly obtained possession in execution, can be deprived of it. But it seems to me that a successful appellant being entitled to restitution, the Appellate Court has, as ancillary to its duty, to restore the party to what ho has lost, which has been taken from him by his opponent under the judgment reversed-a power to pass such orders as may ensure that it shall be in a position to fully carry out that duty, which will fall to it upon the successful determination of the appeal. It would also be open to the Appellate Court to appoint a receiver and on an application to that effect to abstain from appointing a receiver upon the opposite party furnishing the necessary security.
5. I am of opinion, therefore, that we, who have seizin of the appeal, have also an inherent power over the subject of litigation, the nature of which is indicated and implied by Section 583 and can in the exercise of that power and notwithstanding that the decree has been executed, call upon the respondent to furnish security for the due performance of any decree, which may be made on such appeal. It was said in Joynarain Paitur v. Russeek Mokun Bannerjee (1866) 8 W.R. 144 that such an order could not be enforced, but as stated that decision has been dissented from and I see no reason why this Court certainly and perhaps also Mofussil Courts could not enforce such order by way of proceedings taken for contempt.
6. There is however another ground upon which this application is sustainable. The original rule, which was granted under Section 545, directed that all further proceedings should be stayed. Notwithstanding such order and l>y reason of its not being communicated in time to the Lower Court execution proceeded and possession was given. Before the Lower Court gave possession this Court had ordered that it should not be done. It may however be contended on the authority of Bessessuari Chowdhurany v. Hurro Sundar Mosumdar (1892) 1 C.W.N. 226, that the order of this Court only takes effect, when communicated to the Lower Court and that proceedings in execution taken in ignorance of the order of stay are not void. It is to be observed that in that case the question as to the validity of the sale in execution arose in a suit between the alleged judgment-debtor and a third party purchaser, whereas in the present case the matter is between the parties themselves. But apart from this I must respectfully dissent from the decision. An order for stay is made on the day that it is pronounced and not on that on which it is drawn up (cf. In re The Risca Coal and Iron Company; ex-parte Hockey (1861) 31 L.J. Ch. 429 or communicated. No doubt in the case of a prohibitory order by way of injunction, which also operates from the date of the order being made in the sense stated and which is directed to a party and not to a Court, communication is necessary, for the Court will not punish a man for doing what he did not know it was forbidden to him to do. No such considerations here arise. And I can see no reason why the operation of an order of this Court is to be made contingent say upon the due performance of the duties of the Post-office. When the Court has said that execution of a decree is not to take place, from that moment the Court, to which application has been made for execution, has no authority to execute it and delivery of possession under the authority of an order, which was not then in force, but had been suspended upon a stay granted by a Superior Court, is in my opinion invalid. In this case therefore the delivery of possession being in contravention of the order staying proceedings cannot stand and it would have been necessary to direct the possession, which has been be obtained, to be restored, were it not that the appellant is content that the possession should remain with the respondent upon his furnishing the security asked for. We accordingly discharge Rule 3423 without costs and make Rule 3413 absolute on the following terms:
7. The respondent will pay into the Collectorate before the 17th November, the day fixed for the sale, the whole amount in respect of which the sale is advertised to take place and will deposit in the Collectorate within one mouth from the 17th November Government securities of the nominal value of Rs. 8,000 to meet any sums, which may become due for putni rent up to the end of Choit next. The first mentioned amount is to be applied towards stay of sale, unless the appellant procures a stay of the sale by paying up all arrears and also paying a sum equal to the amount, which will accrue due up to the end of Choit next, in which case the sums paid by the respondent will be kept in deposit to the credit of the suit. Costs of this rule will be costs in the appeal. In the event of the respondent not carrying out this order, the appellant will have liberty further to apply.
8. The facts, which have given rise to the litigation, out of which the proceedings now before this Court arise, so far as it is necessary to state them for the purposes of these rules, lie in a narrow compass. Within the zemindari of Bhagobati Chowdhurani, there is a putni taluk Mirzapore Khoparia, held by Chattel-put Singh. The putni extends over many villages, some of which are held in darputni right by Kamalanand Singh and his brother, who are opposite parties to these rules. On the 14th May 1904, the putni was sold under the provisions of Regulation VIII of 1819 at the instance of the zemindar and was purchased by Hukam Chand Boid, the petitioner in these rules. The purchaser toot possession of all the villages comprised in the putni claiming that the property had passed to him free of the rights of the darputnidars. The darputnidar then instituted a suit for declaration that the sale was invalid, because it had been held in contravention of the provisions of the Regulation and for recovery of possession. This suit was decided in favour of the plaintiff on the 24th August 1905, but the decree was not actually signed till the 14th September. Immediately upon the signing of the decree the successful plaintiffs made an application for execution and for delivery of possession. The judgment-debtor prayed that under the second paragraph of Section 545 of the Civil Procedure Code, execution might be stayed for one week to enable him to prefer an appeal to this Court and to obtain an order for stay of execution during the pendency of the appeal under the first paragraph of that section. This application of the judgment-debtor appears to have been summarily rejected, and a writ of delivery of possession was ordered to issue. Before, however, possession could be actually delivered to the judgment-creditor, the judgment-debtor lodged an appeal in this Court on the 18th September 1905 against the decree of the District Judge. On the same day upon, an application presented by the appellant this Court issued a rule calling on the decree-holders opposite party to show cause why delivery of possession of the darputni tenures to them should not be stayed pending the hearing of the appeal, upon such terms as to security as the Court might direct. The Court farther ordered upon this petition that in the meantime and pending the hearing of the rule, all further proceedings shall be stayed. This rule is No. 3423 of 1905. Before, however, the order of this Court could be communicated to the Court below, on the 25th September, possession was delivered to the decree-holders. The appellant, as soon as he came to know of this, applied to this Court on the 27th September 1905, and obtained a rule calling upon the decree-holders respondents to show cause why security should not be taken from them for the due performance of any decree, which may be made by this Court in the appeals preferred by him. This is rule No. 3443 of 1005. The questions, which arise on these two Rules, were fully argued before us on the 9th November last, and it was contended on behalf of the decree-holders (1) that the first rule ought to be discharged, because the decree has been executed and there is nothing to stay and (2) that the second rule ought also to be discharged, because after the decree has been executed, this Court has no jurisdiction to call upon the decree-holders to furnish security for the due performance of any decree, which may be made in the appeal. In my opinion, the first contention must be upheld, but the second cannot be sustained.
9. As regards the first rule, it must be discharged because as the decree has been executed there is no longer any execution to stay. This however does not justify the inference that the execution has taken place in accordance with law, and I shall have occasion to examine this aspect of the case later on.
10. As regards the second rule it is argued by the learned vakil, who appears to show cause on behalf of the decree-holders, that this Court as a Court of Appeal has a jurisdiction to call upon the respondents decree-holders to furnish security for the due performance of the decree, which may ultimately be made in the appeal only during the pendency and before the completion of execution. In support of this proposition, he has placed reliance upon Section 546 of the Civil Procedure Code. I am not disposed to accept the somewhat narrow construction, which the learned vakil seeks to place upon Section 546 of the Civil Procedure Code. It is at least open to contention, that the words in Section 546 of the Civil Procedure Code, namely, “the Appellate Court may for like cause direct the Court, which passed the decree, to take such security” are not controlled by or merely confined to the case in which an order has been made for the execution of a decree and the execution proceedings are still pending. In other words, assuming that the Court, which passed the decree, is competent under the first paragraph of Section 546 to require security from the decree-holder only after an order has been made for the execution of the decree and before the execution has been completed, the Appellate Court under the second paragraph of the section possesses a less restricted power. The words in question are wide and I am not disposed to put too narrow a construction upon them and thus restrict the powers of the Appellate Court. So far as I am aware this clause of Section 546 has not been the subject of judicial interpretation, but the construction adopted by the Judicial Committee in the case of Jarivtool Butool v. Hoseinee Begum (1865) 10 Moo. I.A. 193 distinctly supports the view I take. That case turned upon the construction of Bengal Regulation XVI of 1797, which by Section 4 provided that ” in cases of appeal to His Majesty in Council the Court of Sudder Dewaney Adawlut may either order the judgment passed by them to be carried into execution, taking sufficient security from the party, in whose favour the same may be passed, for the due performance of such order or decree, as His Majesty, his heirs or successors shall think fit to make on the appeal or to suspend the execution of their judgment during the appeal, taking the like security in the latter case from the party left in possession of the property adjudged against him. The Sudder Court of North-West Provinces interpreted this section as authorising it to demand security from the decree-holder only before the execution of the decree has been completed. Lord Justice Turner in delivering the judgment of the Judicial Committee stated that the question was new and not free from difficulty, and held that it was competent to the Court below to require security to be given or otherwise to provide for the protection and security of the property in question pending the appeal, notwithstanding that execution had been completed. Later on, on the 27th January 1866, a Division Bench of this Court in the case of Huro Soondurce Debia v. Stevcson (1866) 5 W.R. Mis. 13, apparently in ignorance of the decision of the Judicial Committee, held that the High Court has no power to require security from a judgment-creditor, after the judgment appealed against has been carried into execution. The same view was affirmed by a Full Bench of this Court in the case of Joy Narain Pattur v. Russeek Mohun Bannerjee (1866) 8 W.R. 144 : B.L.R. Sup. Vol. 744, but the attention of the Court was not invited to the decision of the Judicial Committee. This decision however was brought to the notice of Sir Barnes Peacock C.J. and Mr. Justice Dwarka Nath Mitter, when on the 10th July 1869 an application was made to them on behalf of the appellant in the case of Sam Coomar Koondoo v. Macqeen, which was finally heard by the Judicial Committee in 1872 (1872) L.R.I.A. Sup. vol. 40, for an order upon the respondent to furnish security after execution had been completed. The learned Judges appear to have dealt with the question, how far the decision of the Fall Bench in Joynarain v. Russeck Mohun Bannerjee (1866) 8 W.R. 144 could be treated as good law in view of the decision of the Judicial Committee in Jariutool Butool v. Hoseinee Begum (1865) 10 Moo. I.A. 196. Their judgment unfortunately has been lost and no trace of it can be found in the records of Macqueen’s case, which I have caused to be searched and carefully examined. An extract from the judgment of Sir Barnes Peacock is however reproduced by Mr. Justice Loch in his judgment in the case of Sooruj Monee Dayee v. Sudanund Mohapattur (1869) 12 W.R. 296. The learned Chief Justice appears to have expressed an opinion that the decision of the Judicial Committee is not at variance with the judgment of the Full Bench, which was delivered by himself, but he conceded that according to the Privy Council case the High Court has a discretion to compel the party, who has executed the decree, to give security. “With all respect which one must feel for any opinion expressed by Sir Barnes Peacock, I am unable to reconcile the decision of the Pull Bench with that of the Judicial Committee, which, I must take it, is binding upon this Court, and this view seems to have been adopted in the cases of Sooruj Monte Dayee v. Sudanund Mohapattur (1809) 12 W.R. 296, Juggo Lull Oopadhya v. Jankee Beebee (1872) 17 W.R. 521, Khajuh Ashanulla v. Karoona Moyi Choicdhry (1879) 4 C.L.R. 125 and Narayanan Chetti v. Anmachellam Chetti (1895) I.L.R. 19 Mad. 140, 142. The contrary view, however, was taken by the Bombay High Court in Mansukh Ram Purshotam v. Javarevolm (1870) 7 Bom. H.C. A.C.J. 122, where the learned Judges followed the decision of the Full Bench of this Court overlooking the decision of the Judicial Committee. The case, however, is of importance in one way, because it shows that, according to the learned Judges of the Bombay High Court, the same construction, which had been placed upon Section 4 of Regulation XVI of 1797, ought to be placed upon Section 36 of Act XXIII of 1861, which so far as the present matter is concerned is substantially identical with Section 546 of the present Civil Procedure Code. In the light of the Privy Council decision I must therefore hold that Section 546 of the Civil Procedure Code authorises a Court of Appeal to take security from a decree-holder even after execution of the decree under appeal has been completed,
11. If, however, we assume that a narrow construction is strictly consistent with the terms of Section 546 of the Civil Procedure Code, it does not follow by any means that the contention advanced on behalf of the decree-holder ought to be accepted as sound. As has been already pointed out by my learned brother and by myself in our judgments in the case of Panchanan Singh Roy v. Dwarkanath Roy (1905) 3 C.L.J. 29, the provisions of the Civil Procedure Code cannot be treated as exhaustive. I entirely repudiate the theory that our powers are rigidly circumsoribed by the provisions of the Code, and that we have no power to make a particular order, though it may be absolutely essential in the interest of justice, unless some section of the Code can be pointed out as a direct authority for it. Such a theory is based on a misconception of the true functions of a Code, as to which reference may usefully be made to a well-known passage from Domat’s Civil Law [vol. I, p. 88, Chap. XII, Section 17], quoted in my judgment in the case of Panchanon Singh Roy v. Dwarka Nath Roy (1905) 3 C.L.J. 29. Such a theory, moreover, is entirely inconsistent with various decisions of the Judicial Committee and of the different High Courts in this country, among which I need only mention those in the cases of Ram Kirpal v. Rup Kuari (1883) I.L.R. 6 All. 269 : L.R. 11 I.A. 37 (which affirms the conclusiveness of interlocutory orders in execution proceedings upon general principles, though Section 13 of the Civil Procedure Code is not applicable), Surendra Nath Banerjee v. The Chief Justice and Judges of the Sigh Court of Bengal (1883) I.L.R. 10 Calc. 109 : L.R. 10 I.A. 171 (which recognises the power of the High Court to punish summarily by imprisonment contempts of Court by the publication of a libel out of Court, when the Court is not sitting), Huree Persad Make v. koonja Behary Shaha (1862) Marshall 99 (which recognises the power and duty of a Court to decide jurisdictional questions, though, as a result of its enquiry, it may turn out that the Court, has rot jurisdiction over the suit), Pasupati Nath Bose v. Nanda Lal Bose (1901) I.L.R. 28 Calc. 734 which recognises the power of an Appellate Court to stay execution proceedings pending an appeal from an order under Section 244 of the Civil Procedure Code), In the goods of Luchmi Narain Bogla (1901) 5 C.W.N. 781 (which recognises the power of a Court to stay proceedings pursuant to its own order, in view of an intended appeal) and Balkishen Sahu v. Khngnu (1904) I.L.R. 31 Calc. 722 (which affirms the existence of power in an Appellate Court to stay proceedings founded on a preliminary order in a partition suit, against which an appeal has been preferred). It may be added that the exercise by Courts, of what are called their “inherent powers” or ”incidental powers” is familiar in other systems of law, and such exercise is justified on the ground that it is necessary to make its ordinary exercise of jurisdiction effectual, because, “when juris, diction has once attached, it continues necessarily and all the powers requisite to give it full and complete effect can be exercised, until the end of the law shall be attained” (Fee Works on Courts and their Jurisdiction, Section 27 and Wells on Jurisdiction of Courts, Chapter XVII). Assuming therefore that there are no express statutory provisions strictly applicable to the case now before us, I would hold that this Court, as the Court of Appeal, has an inherent power to deal with this matter and has upon general principles, which I shall presently explain, ample authority to provide for the protection and security of the property, which is the subject-matter of the litigation. It was pointed out by their Lordships of the Judicial Committee in the case of Rodger v. The Comptoir D’es Compte de Paris (1871) L.R. 3 P.C. 465 that a Court of Appeal when it reveses a judgment of a Subordinate Court, has an inherent jurisdiction to order restitution of everything, which may have been improperly taken, because taken in execution of the decree, which was subsequently reversed. The same principle was affirmed by their Lordships in the case of Shama Purshad Roy Chowdery v. Hurro Purshad Roy Chowdery (1865) 10 Moo. I.A. 203 : 3 W.R.P.C. 11, has been repeatedly adopted by the Courts of this country in various decisions, of which Dinesh Prasad v. Sankar Chaudhury (1904) 2 C.L.J. 537 may be taken as the type, and has been recognised by the Legislature in Section 583 of the Civil Procedure Code. As observed in the cases of Burro Chunder Roy Chowdhry v. Shoorodhonee Debia (1868) 9 W.R. 402 and Dorasami Ayyar v. Annasami Ayyar (1899) I.L.R. 23 Mad. 306, the principle of the doctrine of restitution is that on the reversal of a judgment the law raises an obligation on the party to the record, who received the benefit of the erroneous judgment, to make restitution to the other party, for what he had lost and it is not merely in the power of the Courts, but it is a duty cast upon them to enforce that obligation. If it is the legal effect of a decree that it is to be executed, it is no less the effect of a decree of reversal that the party, against whom the decree was given, is to have restitution of all that he has been deprived of under it: see Freeman on Judgments, vol. 2, Section 482. Now it is manifest that as ancillary to the power, which the Court undoubtedly possesses to order restitution, when the judgment is reversed, it must have the power to take security if necessary from the successful litigant, who takes out execution during the pendency of the appeal, for the due performance of the decree or order of the Appellate Court. Unless such security is taken the exercise of the power of restitution might in many instances prove infructuous. The power to take security is essential to make the power to grant restitution complete and effectual by furnishing the means of enforcing it. Does it then make any substantial difference in principle, whether security is demanded before or after execution has been completed? In my opinion, if regard be had to the ultimate purpose, for which security is demanded from a successful decree-holder, who is anxious to realise or has actually realised the fruits of his decree, I cannot appreciate any substantial distinction between the two cases. An order for security may prove to be quite as essential in the one case as in the other for the effective exercise by the Appellate Court of its unquestioned power to order restitution in the event of reversal of the decree which, while under appeal, has been or is sought to be executed. It has no doubt been suggested, as was indeed suggested in the judgment of the Full Bench in the case of Joy Narain Pathir v. Russeek Mohun Bannerjee (1866) 8 W.R. 144, that if this Court makes an order directing a respondent, who had previously executed the decree to give security and the respondent refuses to carry out the order, it would be difficult to enforce it. It is not, necessary for our present purposes to express a decided opinion upon this question, but should the contingency happen I apprehend there will be no difficulty in enforcing the order in view of the principle embodied in Section 260 of the Civil Procedure Code and the power of this Court to punish a person guilty of contempt of its authority: see Bailey on Jurisdiction, vol. I, Section 295. Reference may also be made in this connection to the case of Nobin Kali Debi v. Baualata Debi (1905) I.L.R. 32 Calc. 921, which shows that the Court may not be quite as powerless to enforce an order of this description as is imagined.
12. There is another aspect of the matter now before us to which it is necessary to advert for a moment. Having regard to the proceedings of the Court below, I have no hesitation in stating that the learned District Judge acted with undue precipitancy in ordering execution to proceed, without allowing reasonable opportunity to the petitioner to lodge an appeal in this Court and obtain its orders upon his application for stay of execution. In this connection reference may be made to the observations of Sir Barnes Peacock in. the case of Wise v. Rajkishen Roy (1866) 6 W.R. Mis. 84, 91, where the learned Chief Justice pointed out that in a case of this description there is sufficient cause for staying the hand of the Court below and that it ought to stay its hands, until some order can be obtained from this Court. Apart from this circumstance, however, another important question arises touching the legality of the delivery of possession by the Court below after an order for stay had been made by this Court upon the first application presented by the appellant. As I have already stated this Court on the 18th September last ordered that pending the hering of the rule then issued, all further proceedings be stayed. The Court below in ignorance of this order delivered possession to the decree-holder. In my opinion that delivery of possession was ultra vires and illegal. No doubt the mere issue of a rule by this Court calling upon the opposite party to show cause, why execution should not be stayed, does not operate as a stay of execution, it may also be conceded that a conditional order for stay of execution, for example, an order for stay of execution upon furnishing security to the satisfaction of the Court below has no effect on the proceedings, till the condition has been fulfilled, but when, as in the case before us, this Court has made an unconditional order for stay of execution, the moment the order is made it becomes operative and suspends the power of the Subordinate Court to carry on further the execution proceeding. I respectfully dissent from the decision of this Court in Bessessicari Choudhurany v. Hurro Sunday Mozumdar (1892) 1 C.W.N. 226, where the learned Judges appear to have held broadly and without any qualification that an order of an Appellate Court to stay 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. It is, no doubt, true that if proceedings have to be taken against any person for contempt of the authority of this Court in proceeding with execution after an order for stay has been made, it would be essential to prove that such person has disobeyed or acted in contravention of the order with knowledge that it had been made; but the operation of the order is not postponed till it has been communicated to the Subordinate Court or the party intended to be affected by it. As was pointed out by Baldwin J. in delivering the judgment of the Supreme Court of California in Buffandeau v. Edmondson (1851) 17 California 436 : 79 Am. Dec. 139., injunction by an Appellate Court for stay of execution operates as a supersede as to the execution as soon as it is made. The legal authority to proceed with the execution is withdrawn by the act of a competent Court, and there is no more legal justification for the execution after the order for stay than there would be for execution after the proceedings have been quashed. The learned Judge further added that no doubt could exist that the order would be effectual without any previous notice to the authority carrying on the execution, because the order for stay has direct effect upon the process itself, although if proceedings are taken to punish the person, who has carried on execution after it had been stayed, it is necessary to show that he had notice of the order, because, it is only after such notice that his act would be in defiance of law and in contempt of the Court. The rule is laid down in similar terms in Spelling on Injunctions, vol. I, Sections 173–178. The learned author points out that the effect of an injunction upon an execution sale is to stop the proceedings, where they are, but the injunction does not operate to kill the execution; the sale is arrested by the injunction, but the seizure is not released and the property remains in legal custody pending the injunction, and, if the injunction is subsequently resolved, the parties are restored to the same position, which they occupied before it was granted, Duekett v. Dalrymple (1845) 1 Rich. 143, Lamorer v. Cox (1880) 32 La. An. 246. The same learned author further points out (vol. II, Section 1122) that, if it is sought however to subject a party to punishment in contempt proceedings, it is necessary that it be shown that he has had notice of the contents of the restraining order or writ of injunction, at least to the extent of imparting to him the knowledge that the Acts imputed to him were prohibited therein. But that an order takes effect, generally speaking from the time it is made, is amply shown by the cases of Jones v. Roberts (1825) McCle & Yo. 567, Aberdeen v. Watkinson (1833) 6 Sim. 146, Verlander v. Codd (1822) 1 Sim. & St. 94 and Exp, Hookey (1862) 4 DeG. F. & J. 456; see also the observations of Lord Esher M.R. in Holtby v. Hodgson (1889) 24 Q.B.D. 103, 107.
13. I must therefore hold that the delivery of possession made by the Court below, after this Court had made an unconditional order for stay of execution, was done in excess of its powers and cannot prevent this Court from directing the respondents to furnish security, as it would undoubtedly have power to do, if execution had not been completed. The hands of the Court cannot be tied down and the exercise of its powers cannot be restricted or rendered infructuous, because of an act of the Court below which is manifestly illegal and. which it would never have got an opportunity to do, if the execution proceedings had not been rushed through. I have no hesitation in holding that the second rule calling upon the decree-holder to furnish security ought to be made absolute. I have not deemed it necessary to discuss the merits of the application because it has not been seriously contested that under the circumstances of the case and having regard to the imminent danger of the property being wasted or sold away at the instance of the zemindar during the pendency of the appeal preferred to this Court security ought to be taken from the person in possession and the parties have very properly agreed as to the terms upon which, such security ought to be taken.
14. The result therefore is that the first rule must be discharged and the second rule made absolute in the terms mentioned in the judgment of my learned brother.