Reuben, J.:— The case has been referred to a Special Bench for a decision as to when an order under Order XLI, rule 5, Code of Civil Procedure, passed by an appellate court becomes operative whether it operates from the moment when it is passed or only after communication to the Subordinate Court.
This appeal, which is directed against a decree for the recovery of possession of certain property, was filed on 13th April 1950. On the 14th of April by an order under Order XLI, rule 5, an order for ad interim stay of delivery of possession was passed. The necessary requisites were filed on the 17th of April and the order was issued for communication to the Subordinate court. By some mischance the appellant made an error in naming the Subordinate court and the communication was addressed to the permanent Munsif of Araria instead of the Additional Munsif of Araria. It reached the permanent Munsif on the 25th of April, and was given effect to in Execution Case no. 8 of 1949 of his court instead of being given effect to in the Execution Case of the same number in the court of the Additional Munsif in which the decree under appeal was being executed. In consequence, the Additional. Munsif delivered possession of the property in suit to the decree-holder in June, 1950.
The question at issue has come under the consideration of the courts in several reported decisions. The earliest of these is Bessesswari v. Horro Sundar(1), in which property was sold in execution of a decree and purchased by a third party subsequent to a stay order under section 545, Code of Civil Procedure, 1882. Their Lordships held that the stay order was in the nature of a prohibition to the executing court and would, therefore, take effect only when communicated. The executing court, therefore, had jurisdiction to sell the property and the sale was a valid one. Exactly the opposite view was taken by Woodroffe and Mookerjee, JJ., in Hukum Chand v. Kamalanand(2), in which the decree, as here, was for recovery of possession. While distinguishing the case of Bessesswari v. Horro Sundar, on that ground that the question arose between the judgment-debtor and a third party purchaser, their Lordships went on expressly to dissent from the decision in that case. They agreed that a prohibitory order, for instance an injunction, will operate as a prohibition only from the moment of communication but took the view that an order of stay is not such an order and, from the moment when it is made, suspends the power of the Subordinate court to carry on further execution proceedings. In Muthukumarosami v. Kuppusami(3), a case of an execution sale, their Lordships followed the case of Bessesswari v. Horro Sundari in preference to that of Hukum Chand v. Kamalanand, but without any discussion. In Ramanathan v. Arunachellam) another case of execution sale, Sadasiva Ayyar, J., expressly differed from the decision in Muthukumarasami Romther's case, and expressed the view that unless otherwise provided in the order itself the order operates immediately and suspends from that moment the jurisdiction of the subordinate court to proceed with the execution of the decree under appeal. The facts of the case were that a telegram was sent to the Vakil at Madura informing him of the order of stay and the subordinate court of Ramnad was moved by a petition accompanied by an affidavit to stay the sale but it refused to act on the telegram in the absence of an official communication. Spencer, J. made this a ground for distinguishing the case of Muthukumarasami Rowther. In his opinion, the Subordinate, court acted injudiciously in not postponing the sale in order to ascertain the truth of the information received and he treated this as a reason for setting aside this sale. At the same time he observed that there was much force in the observation of Woodrofle, J. in Hukum Chand v. Kamalanand. “That there is no reason why the operation of as order of the High Court should be made contingent, say, upon the due performance of the duties of the Post Office.”
The matter next came before a Full Bench in, K. Venkatchalapati v. Kameshwarama(4) in respect of an attachment in execution of decree made after the passing of an order of stay. Their Lordships accepted the view in Bessesswari v. Horro Sundar(5). According to Ayling, J., the order of the appellate court is in the nature of a prohibition and therefore, operates only from communication. Seshagiri, J., referred to the provisions of Order XLI, rule 5 and argued that the court of first instance retains jurisdiction to execute a decree in spite of the filing of an appeal and therefore, the power can only be taken away by communication made to it.
The view in Bessesswari v. Horro Sundar was next taken by a Full Bench of the. Allahabad High Court in Parsotam v. Barhma Nand. Mukherji, J., who delivered the leading judgment regarding the order of stay as a “direction to somebody” and therefore, dependent on communication. He took the analogy of a principal directing his agent to purchase a ton of wheat and then countermanding his order by a direction received by his agent only after the completion of the purchase. He pointed out that by the sale proclamation the public are invited by the court to come and bid for the property and asked whether there would be any moral justification for subsequently informing an innocent third party purchaser that the sale was void by reason of an uncommunicated order of stay. With respect, I would submit that analogy is not a safe guide and that moral considerations are irrelevant in a matter of interpretation. The case before their Lordships was one of a stranger purchaser and his Lordship held that the sale was a valid sale. He drew a distinction between such a case and that of a decree-holder purchaser, observing;
“The decree-holder cannot shake off his character as such merely by reason of his auction purchase, and he is bound by all orders passed in the case. A stay order, therefore, will operate against him and it may be that a purchase by a decree-holder will be set aside on the mere ground of the passing of stay order.”
The point was next considered but not decided in Jatis Chandra v. Kshirode Kumar. Premising that Hukum Chand Boid's case merely disapproved the reasoning in the case of Bessesswari and not the decision therein, their Lordships proceeded on the assumption that a stay order made by the appellate court operates from the time when it is passed. They took the view that the Subordinate court nevertheless did not lose jurisdiction over the execution proceedings and the order passed by it in contravention of the stay order might be irregular or even illegal but was still an act done in exercise of jurisdiction, to be set aside by appropriate proceedings. They observed:
“The Court which passed the order or did the act may itself recall it, and ought to do so, when it is later on apprised of the stay order.”
Apparently, they contemplated that on the attention of the executing court being drawn to the existence of the stay order the executing court will automatically restore the status quo ante the passing of the order of stay. The reason for this view is explained immediately after, namely that, if the action taken contrary to the stay order be regarded as without jurisdiction the discovery that this was so might be made so late that injustice might result to an innocent party. Finally, the question came before a Full Bench of the Lahore High Court in Karam Ali v. Raja. The Full Bench on a detailed discussion of the authorities came to the conclusion that the order of stay operates from the moment when it is passed and has the effect from that moment of depriving the subordinate court of its jurisdiction to execute the decree. Munir, Acting Chief Justice, who delivered the leading judgment, proceeded on an interpretation of Order XLI, rule 5 and observed that any consideration of inconvenience or hardship is irrelevant, as, in his opinion, the meaning of the rule is plain, an opinion with which I respectfully agree.
The provision which we have to interpret is:
“An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate court may for sufficient cause order stay of execution of such decree.”
It is noticeable that this rule does not provide for an order directed to anybody. It empowers the appellate court in absolute terms to stay execution. It does not specify any person or court to whom the order is to be communicated. In the absence of any provision or direction to the contrary an order of a court must be taken to operate from the moment when it is made:
“The theory of judicial procedure is that the cogent and binding effect of the order begins immediately from the time when the order is pronounced by the lips of the Judge, and if that could be done physically which legally is supposed to be done, and which one would desire to be done if it were possible, every order would be completed on the spot, written out by the Judicial Officer and in curia before the court rises, and delivered to the parties.” [Lord Westbury L.C in Ex parte Hookey], vide also Jones v. Roberts and Verlander v. Cood.
On its terms, the rule directs that proceedings in execution may not be taken contrary to an order of stay passed by the appellate court. It follows that from the moment the stay order is passed the executing court is deprived of the power of executing the decree and any action taken by it in execution of the decree would be without jurisdiction.
An interpretation which makes the operation of the order depend upon communication is open to the objection that it introduces into the rule something which is not to be found there. Also, far from making for certainty such a rule would make for uncertainty. It raises at once the question as to what is to be considered as communication. Will a statement from the Bar made to the executing court or an affidavit from a party informing the court of the passing of such an order be “communication”? Or, supposing that the copy of the order issued by the court is received in the executing court but owing to some cause is not brought to the notice of the presiding officer, is it to be taken that there is “communication”? Or, if the decree has been transferred to another, court for execution, will “communication” to the court which passed the decree be sufficient? It also makes the date of the operation of the order depend on the efficiency and honesty of the officers responsible for transmitting the order and on possible sharp practice on the part of persons interested in delaying it. The importance that there should be certainty as to the date from which an order of a court operates is well expressed by Lord Westbury L.C (ibid) in words which will bear repetition:
“The greatest possible confusion would arise were it otherwise. In fact, all persons dating their rights from the time of the order being pronounced would be thrown into a state of most inconvenient uncertainty, if they could not exhibit to another court or produce for the purpose of any legal inquiry the order containing the directions' of the court with the date, in the certainty that date will be accepted as the time when the order is made. There would be no possible mode by which the application of Acts of Parliament and the limitation of time could be regulated, unless the court abides by a general principle of interpretation.”
On the score of injustice also, I do not agree that the balance is in favour of the view taken in Bessesswari's case if a court has acted without jurisdiction and a person has entered into possession of property to which he is not entitled in law, he cannot complain if the person entitled thereto gets the property back. I have no doubt that the hands of the court, however, are sufficiently long to enable the person thus dispossessed to get any equitable relief to which he may be justly entitled.
For these reasons, I hold that the delivery of possession in this case was without jurisdiction. In the circumstances of the case, however, I do not think it is necessary to direct a restitution of possession. The property is a small area of Parti land on which some huts stood and have been removed. The valuation as given in suit is only Rs. 45. I propose to follow the course adopted in Hukum Chand Boid's case, namely, that the respondents will remain in possession of the property subject to making a deposit of Rs. 400 as security for costs and compensation recoverable by the appellant in the case of his success in this appeal. The deposit should be made in the court below within one month from today. On the making of the deposit the ad interim stay order will stand discharged. Failing compliance the ad interim stay order will be made absolute and the executing court will restore possession to the appellant. As the appellant's own mistake led to this confusion it is fair that the parties should bear their own costs.
Imam, J.:— This is an application by the defendant judgment debtor under Order XLI, rule 5, Code of Civil Procedure, for stay of execution proceedings in the court below pending the hearing of the second appeal in this court. The plaintiffs had instituted a suit for declaration of their title over and for recovery of possession of a very small piece of land upon which the appellant had wrongly erected a structure. The whole suit was valued at Rs. 45. The court of first instance and the lower appellate court had decreed the plaintiffs' suit. A second appeal was filed by the applicant in this Court on 13th April, 1950. On 14th April, 1950, the Registrar of this Court ordered ad interim stay while admitting the application under Order XLI; rule 5 of the Code. The second appeal was admitted on 25th July, 1950. An application for delivery of possession was filed by the plaintiffs decree-holders on 31st May, 1950, in the court of the Additional Munsif of Araria. In June, 1950, delivery of possession was made by the said court to the decree-holders. Owing to the applicant wrongly stating that the execution proceedings were pending in the court of the Munsif at Araria, the order of ad interim stay of this Court was communicated to that court and not to the court of the Additional Munsif of Araria on 25th April, 1950. Later on the mistake was discovered, but delivery of possession had already taken place.
The report of the Nazir, dated the 4th June, 1950, shows that delivery of possession was made that day, and the two thatched houses on the land in dispute were demolished. It may be mentioned that the decree had directed the applicant to remove the houses within one month from the date of the judgment of the court of first instance, otherwise the plaintiffs would be entitled to get it done through the court.
The real question before this court is whether the rule obtained in the application under Order XLI, rule 5 of the Code should be made absolute or discharged, that is to say, whether the application under Order XLI. rule 5 of the Code should be dismissed or allowed and the execution proceedings in the court below should be stayed until the second appeal in this court filed by the applicant is disposed of. Order XLI, rule 5 of the Code expressly prohibits the stay of execution unless the appellate court is satisfied (a) that substantial loss may result to the party applying for stay of execution unless the order is made, (b) that the application has been made without unreasonable delay and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding on him. In the present case, the land in dispute is of a very small area and the whole appeal has been valued at Rs. 45 only. The thatched houses erected by the applicant on the land have already been domolished on 4th June 1950, when delivery of possession was made to the decree-holder. In my opinion, having regard to all the circumstances, this is not a case where substantial loss will be suffered by the applicant, if stay of execution proceedings is not ordered. The houses having been demolished, there is nothing more for the applicant to suffer, and the land is parti land, not culturable. If the applicant succeeds in his appeal and the decree of the courts below is reversed, he can always apply for restitution under section 144 of the Code. The court has ample-powers under the said section to order mesne profits, damages and compensation. In my opinion, the application under Order XLI, rule 5 of the Code filed by the applicant, must be dismissed, and the ad interim order of stay must be vacated.
I have had the advantage of perusing the judgment of my learned brother, Reuben, J. Having regard to the view I take on the merits of the application under Order XLI, rule 5 of the Code, I am of the opinion that it is not really necessary to decide in this case which view is the more correct one, that taken by the learned Judges of the Calcutta High Court in Hukum Chand v. Kamalanand, or the view taken by the learned Judges of the Madras High Court in Venkatachalapati v. Kameswaramma. As my learned brother, however, has taken the view that the decision of the learned Judges of the Calcutta High Court in Hukum Chand Boid's case is the correct view, I must express my own opinion. In my opinion, the decision of the learned Judges of the Madras High Court in Venkatachalapati Rao's case is more acceptable to me than the view of the learned Judges of the Calcutta High Court in Hukum Chand Boid's case. Order XLI, rule 5 of the Code expressly states that an appeal shall not operate as a stay of proceedings except so far as the appellate court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree, but the appellate court may, for sufficient cause, order stay of execution of such decree, that is to say, if an execution proceeding is pending in the executing court such proceeding shall continue although an appeal has been filed against the decree, unless the appellate court orders stay of execution of the decree. When an appellate court orders stay of execution of the decree, such an order must be regarded as one which prohibits the executing court to proceed with the execution of the decree. The order being in the nature of a prohibitory order must be communicated to the executing court which will then cease to proceed with the execution of the decree. Although rule 5 of Order XLI of the Code does not speak of the stay order of the appellate court being communicated to the executing court, I think a reasonable reading of the rule indicates that where an appellate court has ordered stay of execution of the decree, such an order must be communicated to the executing court otherwise the executing court being ignorant of the order of stay, would be justified in proceeding with the execution proceedings. I do not think that any real practical difficulty can arise in interpreting rule 5 of Order XLI in the way the learned Judges of the Madras High Court have done in Venkatachalapati Rao's case. To hold that everything done by the executing court after the date of the order of stay of the appellate court, and in ignorance of it is without jurisdiction, would, in my opinion, raise many practical difficulties. I think, it would be more reasonable to say that such acts of the executing courts though done with jurisdiction, are voidable but not void. I think the provisions of section 151 of the Code are sufficiently wide to cover a case where the executing court has done certain things, in ignorance of the stay order of the appellate court and such acts cannot be allowed to stand for the ends of justice, or to prevent abuse of process of the court. The observations of Lord Westbury in Ex parte Hookey, must be read in connection with the facts of that case. The point which his Lordship was determining was as to what is the date from which limitation should be calculated under the provisions of a certain statute and he was of the opinion that the date from which such calculation should be made is the date on which the order is pronounced and not the date on which the order is drawn up. I think, there can be little room for doubt that the date of order of a court is the date on which it is pronounced. It is, however, quite a different matter, as to whether the stay order of an appellate court given on a particular date makes all proceedings before the executing court without jurisdiction when that court was ignorant of the order of the appellate court. I have merely in a short compass expressed my agreement with the view taken by the learned Judges of the Madras High Court in Venkatachalapati Rao's case, out of deference to the view of my learned brother, Reuben, J., although I think in this case it is not necessary to decide the point at all as the circumstances in the present case do not establish grounds for allowing the application under Order XLI, rule 5 of the Code.
I would accordingly dismiss this application with costs. Hearing fee, one gold mohur.
Ramaswami, J.:— The terms of the Statutory Rule—Order XLI, rule 5, are absolute, and as a matter of construction I hold that the jurisdiction of the court executing the decree is superseded from the moment the stay order is passed by the appellate court. I can see no reason in principle why the operation of the order of the appellate court should be made conditional on its being communicated to the executing court. It is no doubt true that if proceedings have to be taken against a person for contempt of the authority of the court in proceeding with execution after the order of stay has been made, it is essential to prove that such person has disobeyed or acted in contravention of the order with knowledge that it has 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. The reason is that the order of the appellate court for stay has direct effect upon the execution proceeding itself, although if the proceedings are taken to punish the person who has carried on the 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 court. In Buffandeau v. Edmondson, an American case, it was pointed out by the Subordinate Court that injunction by an appellate court for stay of execution operates as a supersedes 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. In this context the observations of Lord Westbury In re, the Risca Coal & Iron Co. are important. The question in that case was whether under section 33 of the statute 12 and 13 vict. c. 108, which provided.
“that no notice of motion for a rehearing before the Lord Chancellor of Great Britain or Ireland respectively, of any order of the Master of the Rolls in England or Ireland, or of any of the Vice-Chancellors in England under the said Act or in this Act, shall be given after the expiration of three weeks after the order complained of shall have been made”.
Time for the notice began to run from the date the order was pronounced or from the date when the order was drawn up. Dealing with the question of inconvenience that would arise if time began to run only from the date the order was drawn up, the Lord Chancellor observed:
“I think, therefore, I shall abide by a rule of convenience: certainty in the matter is convenience, certainty you attain by abiding by the date of the order: uncertainty you introduce when you depart from that date. A variation from the common rule of abiding by the record is introduced by a departure from that date. Great laxity of practice would be introduced and encouraged by a departure from that date”. To the same effect is Holtby v. Hodgson, in which the judgment has been signed in an action against a married woman execution upon which was limited to her separate estate not subject to any restraint upon anticipation, it was sought to attach in execution a sum of money recovered by her as damages in an action against the garnishee, and for which the Judge at the trial had directed judgment to be entered for her. It was held by the court of appeal that the money could be attached and further that the fact that judgment in the action against the garnishee was not in fact entered until after the commencement of the garnishee proceedings did not affect the right of the plaintiff to garnishee order.
For these reasons, I hold that delivery of possession made to the respondent in this case was without jurisdiction and I agree to the order which my learned brother Reuben, has proposed.
Reference answered.
K.D