Bookmark
PDF
Share
CaseIQ

Purna Chand Sahu v. Chamra Bariha

Orissa High Court

Nov 10, 1953

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Structured Summary of the Opinion (Mohapatra, J.)

Factual and Procedural Background

This opinion arises from an application by defendant No. 1 for leave to appeal to the Supreme Court against a confirming judgment and decree dated 7-11-1949 of Sri P.C. Dey, Subordinate Judge of Sambaipur. The underlying suit concerned recovery of possession of "sir lands" attached to a Thikadari tenure. Defendant No. 3 was the ex-Thikadar; defendant No. 2 (Lal Sadananda Singh) was the Zamindar. Plaintiff No. 1 was the son of the ex-Thikadar (defendant No. 3) and plaintiff No. 2 was plaintiff No. 1's uncle, both belonging to the junior branch of the family having a common ancestor.

Procedurally, defendant No. 2 (the Zamindar) previously filed O.S. No. 16/33 in the Munsif's Court against defendant No. 3 alone for rent arrears (about Rs. 375) and ejectment; that suit was decreed on 5-6-1933 with a direction to pay within three months or face eviction. The Zamindar took possession in execution of that decree. Defendant No. 1 then took a lease of the lands from the Zamindar and entered upon them. The present plaintiffs sued for recovery of possession on the ground that the previous decree was merely personal against defendant No. 3 and, because the lands and Thikadari interest were ancestral, the plaintiffs' interests were not affected by that personal decree.

The trial Court granted relief to the plaintiffs on the ground that the previous decree was personal and did not bind the plaintiffs' interests, finding that the disputed interest was ancestral property. On appeal the High Court confirmed that finding. Defendant No. 1 (the present appellant) sought leave to appeal to the Supreme Court; this application is the subject of the present opinion.

Legal Issues Presented

Whether leave to appeal to the Supreme Court should be granted in respect of the High Court's confirmation of the trial Court's judgment (i.e., whether a substantial question of law is involved).
Whether a prior personal decree against the ex-Thikadar (defendant No. 3) could extinguish the interests of other family members in ancestral Thikadari land (i.e., effect of a personal decree on ancestral/coparcenary interests).
Whether, after refusal of leave, the High Court (or the Court seized of the application) has inherent jurisdiction under Section 151 CPC to stay execution of a decree which is not covered by Order XLV, Rule 13 of the CPC.
Whether the appellant can be permitted to re-value the subject-matter (having earlier valued it at a lower sum in a lower court) for the purpose of obtaining leave to appeal to the Supreme Court (the approbate-and-reprobate principle).

Arguments of the Parties

Appellant's Arguments (defendant No. 1, represented by Mr. B.N. Das)

The appellant sought leave to appeal to the Supreme Court, asserting (by affidavit) that the suit properties were valued at more than Rs. 10,000, which would make the case cognizable by the Supreme Court on appeal by special leave.
After the rejection of leave under Order XLV, Rule 13, the appellant relied on Section 151 CPC and the inherent powers of the Court to seek a stay of execution so as to enable him to move the Supreme Court for special leave and obtain a stay.
The appellant relied upon precedent (Nund Kishore v. Ramgolam, 40 Cal 955) in support of the proposition that the High Court may, in the exercise of its inherent jurisdiction, stay execution in suitable circumstances.

Plaintiffs' / Respondents' Position (as reflected in the trial and High Court findings)

The plaintiffs contended that the previous decree was a purely personal decree against the ex-Thikadar (defendant No. 3) and, because the disputed Thikadari interest and lands were ancestral, the plaintiffs' coparcenary interests were not affected.
The plaintiffs also contended that a Thikadar could not be ejected solely on the ground of non-payment of rent when the interest was ancestral.
The trial Court and High Court accepted these positions and held that the previous decree did not extinguish the plaintiffs' interests in the ancestral Thikadari property.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tirtha Naik v. Sadananda, AIR 1952 Orissa 99	Thikadari leases (permanent, temporary, renewed or renewable) are like other property and are capable of being possessed by a coparcenary; joint family estate can include such leases when acquired with joint funds, labour, or treated as joint family property.	The Court held the present case was fully covered by this decision and applied its principles to conclude that a mere personal decree against the ex-Thikadar could not extinguish the ancestral interests of other family members.
Mahendra Narayan v. Jankinath, AIR 1931 Cal 417 (Rankin, C.J.)	Principle preventing a party from approbating and reprobating — i.e., a party cannot take inconsistent positions in different courts for tactical advantage (here, valuation for court-fees/appeal).	The Court relied on this authority to hold that the appellant could not now claim the properties were valued at more than Rs. 10,000 after having valued them at Rs. 3,000 before the High Court.
Anant Narayan v. Ramchandra Gangadhar, AIR 1918 Bom 224	Same principle as above (approbate and reprobate) recognized in Bombay High Court decisions.	Reinforced the Court's view that the appellant could not adopt a higher valuation for the purpose of seeking leave to appeal after having put a lower valuation in the lower appellate court.
Nund Kishore v. Ramgolam, 40 Cal 955	Example where High Court exercised inherent power to stay execution (in the face of practical delay to obtain leave to appeal to the Judicial Committee) on the grounds of 'ex debito justitiae'.	The appellant relied on this decision for the proposition that the High Court may stay execution in exercise of inherent powers; the Court discussed and distinguished it, noting factual circumstances (delay to obtain leave abroad) that justified that case.
Sailendra Nath v. Saroj Kumar, AIR 1934 Cal 823	Distinction between petitions for stay of further proceedings and stay of execution; recognition that High Court has inherent power to stay further proceedings in a suitable case though Order XLV, Rule 13 may not strictly apply.	The Court cited this case to show that while inherent power may exist to stay further proceedings, there was limited or no discussion supporting inherent power to stay execution where statutory provisions do not permit it; the case refused stay on merits.
Jewan Ram Gangaram & Co. v. Commrs. for Port of Calcutta, AIR 1939 Cal 308	High Court may, under Section 151 CPC, stay execution where an appeal is pending and practical difficulties (e.g., necessity to move Privy Council) justify interlocutory stay pending further appellate steps.	The Court noted this decision but distinguished it on the ground that the appeal there was pending and the High Court retained full seisin and passed an interlocutory stay; the present case involved a refusal of leave, not a pending appeal.
Atma Ram v. Beniprasad, AIR 1934 All 585 (Sulaiman C.J.)	Cautionary view on inherent jurisdiction: Section 151 CPC preserves inherent power but does not create a new jurisdiction; courts should not invent new categories of inherent power to direct subordinate courts or proceedings beyond established types.	The Court relied on this reasoning to support the conclusion that inherent powers are not to be expansively invoked to stay execution where statutes (Order XLV, Rule 13) provide specific provisions.

Court's Reasoning and Analysis

The Court's legal analysis proceeded in two connected strands: (A) the merits question on whether a prior personal decree extinguished ancestral/coparcenary interests, and (B) the procedural question whether the Court could stay execution after refusing leave.

A. Merits — effect of prior decree on ancestral Thikadari interest

The Court accepted as undisputed that the previous decree was personal against defendant No. 3 and that the disputed properties together with the Thikadari interest were ancestral.
Applying the principles in Tirtha Naik v. Sadananda (after reviewing case law), the Court reiterated that Thikadari leases (permanent or renewable) can be possessed by a coparcenary and may be treated as joint family property where acquired or treated as such; consequently, a mere personal decree against an ex-Thikadar cannot extinguish the coparcenary or ancestral interests of other family members.
On that basis, the Court found no substance in a challenge to the High Court's confirmation of the trial Court's conclusion that the decree did not bind the plaintiffs' interests; the case therefore did not raise any substantial question of law warranting leave to appeal to the Supreme Court.

B. Procedural — leave, valuation and stay of execution

Valuation / Approbate-reprobate: The appellant claimed a valuation in excess of Rs. 10,000 by affidavit to satisfy a threshold for Supreme Court leave. The Court observed that even if the valuation exceeded Rs.10,000, leave will not be granted in the absence of any substantial question of law. More importantly, the Court held the appellant could not now claim a higher valuation when, as appellant before the High Court, he had put the value at Rs. 3,000. The Court invoked the well-established principle that a party cannot approbate and reprobate to obtain tactical advantage — supported by Mahendra Narayan v. Jankinath and Anant Narayan v. Ramchandra Gangadhar — and therefore the valuation claim could not be used to procure leave.
Stay of execution — statutory provision (Order XLV, Rule 13) and inherent power: The Court examined Order XLV, Rule 13 (CPC), which states that "Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs." The language indicates that special provision for stay of execution is made only after the grant of a certificate (i.e., within the statutory scheme).
The appellant, having accepted that Order XLV, Rule 13 did not apply, invoked Section 151 CPC (inherent powers) and relied on Nund Kishore and other authorities to ask for a stay pending an attempt to obtain special leave. The Court reviewed Nund Kishore (where inherent power was used to stay execution because obtaining leave abroad would take time) and noted that one judge (Holmood, J.) had expressed strong reservations about using inherent power where the law did not expressly authorize a stay; Holmood J. considered such use "an abuse of the process of the Court" except on very good grounds.
The Court also discussed Sailendra Nath (distinguishing stay of further proceedings from stay of execution), Jewan Ram Gangaram (where an interlocutory stay was granted because an appeal was pending and the High Court had seisin), and Atma Ram (a cautionary statement that Section 151 preserves inherent power but does not create new jurisdictions or categories of power that did not previously exist).
Weighing these authorities, the Court concluded that ordinarily a court has no inherent power to stay execution of a decree unless the case falls within Order XLV, Rule 13. The Court added a structural argument: if inherent power permitted stays in such circumstances, then specific statutory provisions (Order XLI, Rules 5 & 6; Order XLV, Rule 13) would be rendered redundant. The Court therefore treated the power to stay execution as primarily governed by the statutory provisions and declined to exercise Section 151 to stay execution in the present circumstances (where leave had been refused and no certificate under Order XLV had been granted).
Accordingly, the Court refused to grant leave and also refused the appellant's prayer for a stay of execution; the stay petition was rejected.

Holding and Implications

Core Ruling: The Court refused to grant leave to appeal to the Supreme Court and dismissed the application for leave; the application is dismissed with costs of Rs. 50. The Court also rejected the appellant's petition for a stay of execution.

Implications and consequences:

Direct effect on the parties: The High Court's confirmation of the trial Court's judgment — that the prior decree against the ex-Thikadar was a mere personal decree and did not affect the plaintiffs' ancestral interests — stands. The decree is to be executed and the appellant's attempt to stay execution after refusal of leave has failed.
On procedure and doctrine: The Court laid down and expressed the proposition that, ordinarily, a court does not have inherent power to stay execution of a decree where the statutory provision (Order XLV, Rule 13 CPC) does not permit it; exceptional stays in earlier authorities were fact-sensitive (for example, where an appeal was pending or exceptional delay to obtain leave abroad existed). The Court emphasized that statutory mechanisms (Order XLI, Rules 5 & 6; Order XLV, Rule 13) are the proper avenues for stays during appeals and that reliance on inherent power to stay execution in such circumstances would ordinarily amount to an abuse of the process of the Court.
On precedent and novelty: The Court treated the matter as not involving any substantial question of law for the Supreme Court and did not grant special leave; the decision operates as an application of existing precedent and statutory construction rather than the setting of a novel legal rule beyond what was discussed in prior authorities.

Disposition: Petition rejected. (Panigrahi, C.J. concurred.)

Show all summary ...

Mohapatra, J.:— This application for leave to appeal to Supreme Court has been filed by defendant No. 1 against the confirming judgment and decree dated 7-11-1949 of Sri P.C Dey, Subordinate Judge of Sambaipur. The suit is for recovery of possession of sir lands attached to the Thikadari tenure of which defendant No. 3 was the ex-Thikadar and defendant No. 2 Lal Sadananda Singh is the Zamindar. Plaintiff No. 1 is the son of ex-Thikadar Raghu Bariha (defendant No. 3) and plaintiff No. 2 is the uncle of plaintiff No. 1 belonging to the junior branch of the family which had a common ancestor.

2. The Zamindar (defendant No. 2) filed O.S No. 16/33 in the Munsif's Court against defendant No. 3 alone for realisation of arrears of rent of Rs. 375/- and odd and for ejectment of defendant No. 3. The suit was decreed on 5-6-33. Defendant No. 3 was directed to pay up the decretal dues within three months, failing which he was to be evicted. The present defendant No. 2 having taken delivery of possession of the suit lands in execution of that decree, and defendant No. 1, the appellant, having taken lease of these lands from defendant No. 2 and having entered upon the disputed lands, the present suit was brought mainly on the allegation that the previous decree was a personal decree against defendant No. 3 and the plaintiffs not having been represented in the previous decree, their interest in the suit lands, which are ancestral properties, is not affected. The plaintiffs, therefore, prayed for recovery of possession of the suit lands. The plaintiffs' further contention was that the Thikadar was not liable to be ejected solely on the ground of non-payment of rent. The trial Court granted relief in favour of the plaintiffs mainly on the ground that the previous decree was merely a personal decree against the ex-Thikadar (defendant No. 3) and it did not bind the interest of the present plaintiffs. It was found that the Thikadari interest along with the disputed sir lands were the ancestral properties of the parties. In appeal, the High Court confirmed the finding of the trial Court, that the previous decree against defendant No. 3 was a mere personal decree and further that the properties in dispute are the ancestral properties and, as such, the interests of the plaintiffs were not affected by the previous decree.

3. It is not disputed before us that the previous decree was a personal decree wherein the present plaintiffs were not represented at all. Furthermore, it is not disputed that the properties along with the Thikadari interest are the ancestral properties of the parties. This being the position, the case is fully covered by the decision of this Court in the case of — ‘Tirtha Naik v. Sadananda’, AIR 1952 Orissa 99 (A).

4. Some of the principles laid down in that case, after a review of the entire case law on the subject are that the Thikadari leases, either permanent or temporary but renewed or renewable from time to time, are, like any other property, capable of being possessed by a coparcenary; and that the joint family estate in such (Thikadary) leases can grow either if they are acquired with the joint family funds, or with joint family labour or is allowed to be treated as joint family property by the acquiror. When the manifest position in the case is that the disputed properties are ancestral and the other members of the family had interest, the same cannot be ex-tinguished by execution of a mere personal decree against the ex-Thikadar. We are, therefore, of the opinion that it is not a fit case where leave can be granted nor is it a case where any substantial question of law is involved.

5. Mr. B.N Das, appearing for the appellant, contends, relying upon the affidavit filed on behalf of the appellant, that the suit properties will be valued at more than ten thousand rupees. Even if the valuation of the properties be more than ten thousand rupees, leave cannot be granted unless there is any substantial question of law involved, as the judgment of the High Court is one confirming the judgment and decree of the trial Court. We have found that the case does not involve any substantial question of law.

6. But that apart, it is clear that the appellant will not be allowed to take up the position that the suit properties are valued at more than ten thousand rupees in the face of the fact that he being the appellant before the High Court, had valued the properties in suit at Rs. 3000/-. The principle is well established that a party cannot approbate and reprobate for the purpose of filing an appeal to the Supreme Court when he had taken advantage of the position by putting a much lower value of the properties in dispute in the lower appellate Court. It is to be noted here that the court-fees payable in the lower Court were on the marked value of the subject matter of the suit. We may here refer to a decision of Rankin, C.J in Division Bench of the Calcutta High Court reported in — ‘Mahendra Narayan v. Jankinath’, AIR 1931 Cal 417 (B). The same view was also taken in the Bombay High Court reported in — ‘Anant Narayan v. Ramchandra Gangadhar’, AIR 1918 Bom 224 (C).

7. On a consideration of these points, therefore, we refuse to grant leave and the application is, therefore, dismissed with costs, which are assessed at Rs. 50/- (Rupees fifty).

8. But a further point of importance arises to be decided in connection with the prayer of the appellant for staying execution of the decree in the meantime and allowing the appellant to move the Supreme Court for special leave and obtain a stay order. The question is, after rejecting the prayer for leave, whether we have any jurisdiction to grant such a prayer for stay of execution of the decree and further if the present case is a fit one wherein we should exercise our jurisdiction. The provision of stay of execution of decree, appealed from, in such cases, is contained in Order XLV, Rule 13 of the CPC, which runs as follows:

“Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.”

9. The language is manifestly clear to indicate that special provision is made for granting stay of execution of the decree only after the grant of certificate. Mr. Das, realising that the present case is not covered by the provisions of Order XLV, Rule 13, falls back upon Section 151 of the CPC, to invoke our jurisdiction to prevent abuse of the process of Court and stay execution in the interest of justice.

10. He particularly relies upon a decision of Mukherjea J. reported in — ‘Nund Kishore v. Ramgolam’, 40 Cal 955 (D) wherein in similar circumstances stay of execution was allowed in exercise of the inherent power of the High Court. In that case the petitioners were defendants in a mortgage suit which was dismissed by the trial Court; but the decree was reversed and the mortgage decree was passed by the High Court. The defendants applied to the High Court for leave to apply to His Majesty in Council; the application was refused; thereafter the defendants made an application for stay of execution of the decree which was made final by the Court in India during the pendency of the application. After the rejection of the leave by the High Court the petitioners filed an affidavit that they had taken steps to apply to the Judicial Committee for special leave and invoked the inherent powers of the Court to stay execution. The High Court stayed the execution proceedings relying upon the principle ‘ex debito justitiae’, to do that real and substantial justice for the administration of which alone the Court exists. Mukherjea, J. was mainly impressed with the circumstances appearing that

“an application to the Judicial Committee for special leave to appeal to His Majesty in Council, must necessarily take time; distance cannot be annihilated, and time must be occupied, in spite of utmost expedition, in the preparation and transmission of papers. Besides their Lordships of the Judicial Committee do not hold their sittings continuously throughout the year, and weeks may elapse before the most diligent of suitors is able to obtain special leave to appeal to His Majesty in Council.”

11. It is significant to note that these circumstances have now disappeared. We will note here that Holmood, J. was a party to the judgment. Even though he did not differ from his learned brother in allowing stay, he did not agree with the reasons contained in the judgment of Mukherjea, J. He strongly expressed himself in the words:

“To my mind, the use of the inherent power in this case would be an abuse of the process of the Court…… I am strongly averse to staying execution, where the law does not expressly authorise it, except on very good grounds shown to the satisfaction of the Court.”

12. It is clear that in such a case there is no question to right a wrong or to prevent the abuse of process of Court; the decree has been passed by the High Court and we have got to take, the decree as a valid and good decree until it is set aside. The decree-holder manifestly has got the right to execute the decree unless he is prohibited by law to execute or unless the Courts are empowered by express provision of law to restrain the decree-holder from executing the decree in certain events. The very language of Order XLV, Rule 13 is emphatic on the point that such a decree having been passed by the High Court is to be executed ‘unconditionally’, unless the Court directs otherwise even after the granting, of the certificate. We are inclined to agree with the view expressed by Holmood J. that in such a case where the law does not expressly authorise to restrain the decree-holder from executing the decree, to prevent the decree-holder from executing the decree by using the inherent power of the Court would ordinarily be an abuse of the process of Court.

13. We shall next refer to the case reported in — ‘Sailendra Nath v. Saroj Kumar’, AIR 1934 Cal 823 (E). In that case, a petition for stay of further proceedings was distinguished from that of stay of execution of the decree. Their Lordships opined that even though such a case did not come within the language of Order XLV, Rule 13, the High Court might exercise its inherent powers in staying further proceedings. Their Lordships merely observed, without any discussion of the matter, that it was now well settled that apart from the aforesaid provision, that is, Order XLV, Rule 13, there was abundant inherent power in the Court to stay such proceedings in a suitable case. On the merits, however, their Lordships refused to allow stay. It does not appear from the case whether the petition for stay of further proceedings was presented after the refusal of the prayer for leave to appeal or after granting the same. That is an important point of distinction.

14. The next decision that has been brought to our notice is also of the same High Court reported in — ‘Jewan Ram Gangaram & Co. v. Commrs. for Port of Calcutta’, AIR 1939 Cal 308 (P). The applicants before their Lordships were defendants in the suit which was decreed, one of the terms of the decree being that the applicants were ordered to remove certain buildings and structures on the land in suit within three months from the date of the decree. Against that decree, the applicants preferred an appeal to the High Court and the appeal was pending. The applicant's petition for stay of execution of the decree appealed against to the High Court having been refused, the applicants applied for a certificate for leave to appeal to His Majesty in Council against the order refusing to stay execution.

15. It is to be noted that the appeal itself was pending. It was stated before their Lordships in the petition for stay that the applicants had taken steps to file an application for leave to appeal and for stay of execution of the said decree to His Majesty in Council. As it was physically impossible for the applicants to file an application for special leave before a considerable length of time, they moved for stay to enable them to approach their Lordships of the Privy Council for obtaining such an order for stay. Their Lordships observed, relying upon the decision that we have already referred to above, that is 40 Cal 955 (D), that it was open to the High Court to exercise its power under Section 151 and stay execution of the decree although the matter may not strictly come within the terms of Order XLV, Rule 13.

16. Here the point of distinction, of course, is that the appeal was still pending and the decree was not finalised by the High Court. In the meantime the applicants having failed to obtain stay order from the High Court they wanted to move the Privy Council only against the order refusing to stay. When the High Court had full seisin over the case, the appeal being pending, they passed an interlocutory order during the course of the appeal granting stay of execution of the decree for a short time for enabling them to approach the Privy Council aggrieved by the previous interlocutory order refusing stay.

17. We may next refer to a Division Bench case of the Allahabad High Court reported in — ‘Atma Ram v. Beniprasad’, AIR 1934 All 585 (G) where the judgment was delivered by Sulaiman C.J There, leave to appeal to His Majesty in Council from an order passed in revision by the High Court was granted under Section 109(c) and the appeal before the Privy Council was pending. The defendant-appellant applied to the High Court that further proceedings in the Court below be stayed till the disposal of the Privy Council Appeal. The question arose whether the Court could exercise inherent power to stay further proceedings in the Court below which are not covered by the strict language of the provisions of Order XLV. Rule 13. Without finally deciding the point, Sulaiman C.J expressed an opinion that

“We are not prepared to hold that there is an inherent jurisdiction in the High Court to direct Courts subordinate to it to proceed in a particular manner. Section 151 of the CPC does not confer any jurisdiction on the Court which did not already exist. It merely preserves the inherent power of the Court which it may possess. Varieties of inherent jurisdiction are well recognised, and new categories cannot be invented.”

18. On a review of these decisions, therefore, we are of the opinion that we may safely lay down, as a proposition that in such cases of execution of decree, ordinarily the Court has no inherent power to stay unless the case is covered by the provisions of Order XLV, Rule 13, that is to say, the Court cannot order stay of execution of decrees while leave application is pending before granting certificate or when the Court has refused to grant certificate. We are strengthened in our view on another consideration also by looking to the provisions of Order XLI, Rr. 5 and 6 — Rule 5 empowers the appellate Court to stay execution of decree during the pendency of the appeal on sufficient cause; Rule 6 empowers the Court which passed the decree to stay execution of the decree on sufficient security having been furnished during the pendency of the appeal. If the Court has inherent power of staying execution of the decree by such provisions like Order XLI, Rr. 5 and 6, Order XLV Rule 13 will be deemed as redundant and un-necessary. Indeed in some cases the judgment and] decree passed by the High Court are set aside, but in this case the appellant has the remedy by restriction if the decree has been executed before stay order is obtained from the Supreme Court. The stay petition is, therefore, rejected.

Panigrahi, C.J:— I agree.

B/H.G.P

19. Petition rejected.