The Judgment of the Court was delivered by

Mitter, J.:— Raja Rajendra Narayan Roy of Bhowal died, leaving three sons as his heirs, Kumar Ranendra Narayan, Ramendra Narayan and Rabindra Narayan. Ranendra Narayan and Rabindra Narayan died childless, leaving widows, who inherited their respective shares. It was alleged that the second son, Ramendra Narayan, had also died childless in 1909, leaving his wife Sm. Bibhabati Debi as his heir. In 1911–1912 the Court of Wards took over the management of the whole of the Bhowal Raj Estate on behalf of the widows of Ranendra and Robindra and also on behalf of Sm. Bibhabati Debi. The Plaintiff, who is the applicant before us, instituted a suit in the Court of the Subordinate Judge at Dacca for a declaration that he was Ramendra Narayan Roy, the second son of Raja Rajendra Narayan, and was so entitled to an undivided third share of the Bhowal Raj Estate and for possession of the said share. Sm. Bibhabati Debi was the principal Defendant in that suit. That suit, which was later on transferred to the Court of the Additional District Judge, Dacca, was decreed in his favour on the 24th August, 1936. Before filing an appeal to this Court Sm. Bibhabati Debi obtained an order from the Court which had passed the decree by which execution of the decree was stayed till the 21st November, 1936. Sm. Bibhabati Debi filed her appeal against the said decree, being First Appeal No. 1 of 1937, on the 5th October, 1936. Thereafter at her instance a Rule was issued by this Court on the Plaintiff to show cause why the execution of the decree should not be stayed till the disposal of the said first appeal. That rule came on for final hearing before S.K Ghose and McNair, JJ. Their order, which was passed on the 13th December, 1936, is reported in Bibhabati v. Ramendra Narayan(1). The execution started by the Plaintiff was allowed to proceed on terms. Those terms were:

(1) that the manager of the Court of Wards was to remain in charge of the properties in suit but as Manager of the Plaintiff;

(2) that the Plaintiff was to execute in favour of the said persons a power of attorney on terms indicated in that order; and

(3) that the Plaintiff was to furnish security for rupees two lacs.

The amount of the security was fixed on an estimate that the net annual income of the properties in suit was rupees one lac and that the first appeal would be pending for two years only. It was expressly stated in the order that if the appeal was not disposed of in two years, the Appellant would have the liberty to apply for reconsideration of the amount of the security.

The Plaintiff executed the power-of-attorney in favour of Rai Shaheb U.N Ghosh, who was at that time the manager of the Court of Wards and gave security for rupees two lacs. His application for execution therefore was proceeded with. Sm. Bibhabati Debi filed an objection to that application under sec. 47 of the Code of Civil Procedure. Her objection was that the decree of the learned Additional District Judge had allowed the Plaintiff to take joint possession of an undivided third share not of the whole of the Bhowal Raj Estate but only of that share in a number of specified properties which did not exhaust the properties of the Bhowal Raj Estate. The said objection was overruled by the executing Court by an order dated the 22nd December, 1937. The learned Judge held that the Plaintiff was entitled to get possession of an undivided third share of the whole of the Bhowal Raj Estate. Miscellaneous appeal No. 1 of 1938 was preferred in this Court by Sm. Bibhabati Debi against that order. While the proceedings in execution were pending in the executing Court formal delivery of possession of the share in those properties, which Sm. Bibhabati had admitted to be included in the decree under execution, was given by the executing Court in December, 1937, to the Plaintiff through his manager, who was the then manager of the Court of Wards in respect of the remaining two-thirds share of the Bhowal Raj not in suit.

Sm. Bibhabati Debi filed an application in the said Miscellaneous Appeal No. 1 of 1938 for stay of delivery of possession to the Plaintiff of the properties which according to her were not comprised within the decree. That application was disposed of on terms which are not now material. The said Miscellaneous Appeal No. 1 of 1938 was dismissed in February, 1941. The result is that it has now been finally held that the Plaintiff is entitled to get possession of an undivided third share of the whole Bhowal Raj Estate in terms of the decree of the Additional District Judge of Dacca which has been confirmed by this Court on the 25th November, 1940, when final orders were made in regard to first appeal No. 1 of 1937. In May, 1941 the Plaintiff was given formal possession through his manager of the remainder of the properties included in the Bhowal Raj Estate.

On the basis of the security furnished by the Plaintiff in terms of the order of S.K Ghose and McNair, JJ., the Plaintiff was paid Rs. 2,00,000 by the Manager of the Court of Wards before August, 1938. He had still a surplus amount in his hands. At that stage Sm. Bibhabati Debi made an application to this Court in First Appeal No. 1 of 1937 on the 24th August, 1938, in which she pointed out that the Plaintiff had already taken rupees two lacs from out of the income of the properties in suit. She asked the Court to make an order on the Manager not to pay the Plaintiff any further sum until the latter had furnished additional security. That application was disposed of by an order dated the 7th November, 1938. The order runs thus:—

“We direct the Manager to deposit the surplus amount in his hands which is payable to the Plaintiff in terms of the orders of the Court and go on depositing every month further amounts as they become available in this Court till the disposal of the appeal. (First Appeal No. 1 of 1937).

The amount so deposited can only be withdrawn by the Plaintiff Respondent on his furnishing additional security to the satisfaction of the Registrar, Original Side, of this Court.”

In terms of this order the Manager went on depositing in this Court the net income of the properties in suit. The total amount so deposited by him is Rs. 2,98,489-1-8. Of this sum Rs. 2,78,489-1-8 was deposited before the 25th November, 1940, when the First Appeal No. 1 of 1937 was finally disposed of by this Court and Rs. 20,000 was deposited by him thereafter. The Plaintiff did not furnish additional security in terms of the order dated the 7th November, 1938, and so the sum is lying in this Court. By his application made before us he wants to withdraw the whole amount without giving any security. His contention is that as the decree of this Court had declared him to be the owner of the suit properties and as there is no appeal yet against that decree, he is entitled to withdraw the said sum of money unconditionally, as it represents the net income of his properties. This application is opposed by Sm. Bibhabati Debi. She has filed an affidavit on the 4th April, 1941, in which she has stated that she intends to file an appeal to His Majesty in Council, but has not been able to prepare the grounds of appeal and to file the application for leave to appeal to His Majesty in Council as she has not been able to obtain the certified copies of the judgment and decree of this Court passed in First Appeal No. 1 of 1937, although she had applied for the same immediately after the judgment was delivered. After the said affidavit had been filed, certified copies of the judgment and decree have been delivered to her by the office on the 13th June, 1941. The learned Advocate appearing for her makes a statement that he has been instructed to prepare the grounds of appeal but as the judgments of the three learned Judges who heard the appeal are voluminous, it would not be possible for him to draw up the grounds of appeal before the last week of August even with the greatest amount of application. The last date for filing the application for leave to appeal to His Majesty in Council, we are told by Mr. Chakravartti, would be the re-opening date after the long vacation, i.e, the 10th November, 1941.

We do not think that Sm. Bibhabati Debi can at this stage object to the withdrawal by the Plaintiff of the sum of Rs. 20,000 which was deposited by the Manager of the Court of Wards after the disposal of First Appeal No. 1 of 1937 by this Court. That sum was not deposited in this Court in pursuance of any order passed by it, for the direction of this Court was that the surplus income of the properties in suit was to be deposited as long as the said appeal would be pending in this Court. The Manager of the Court of Wards is the Plaintiff's manager and as the orders passed by S.K Ghose and McNair, JJ. and the order passed by us on the 7th November, 1938, had spent their force as soon as the final order was made in the said first appeal on the 25th November, 1940, it was the duty of the said Manager to pay after the 25th November, 1940, all the income of the disputed properties to the Plaintiff directly. He was under no obligation to deposit the same in this Court. We must accordingly proceed on the footing as if the said Manager had done with regard to those sums of money what he ought not to have done. The mere fact that he has deposited the same in this Court on mistaken notions cannot, in our judgment, place the Plaintiff in a worse position. In any event even if we had the power to prevent the withdrawal by the Plaintiff of the said sum of Rs. 20,000 or prevent him from taking the profits of the properties in suit that have accrued due after the 25th November, 1940, or are now accruing, we think that we should not in our discretion exercise that power. He has taken possession through Court by executing his decree and the imposition of an obstacle against him in respect of those sums of money would be reducing his possession to a barren one. We would, however, make it clear that should the Division Bench, which would be in charge of Privy Council matters at the time when the leave to appeal to His Majesty in Council will be made, be of opinion that it has the power to demand security from the Plaintiff for the profits that he may receive or may have received from the properties in suit and that power should be exercised, the order which we are making in respect of the said sum of Rs. 20,000 or the observations which we have made bearing on the question of the exercise of discretion shall not be taken to fetter the hands of that Bench in any way. With regard to the said sum of Rs. 20,000 which has been deposited in this Court after the 25th November, 1940, our order is that the same may be withdrawn by the Plaintiff without furnishing any security.

With regard to the remaining sum in deposit in this Court, namely Rs. 2,78,489-1-8, the position is different. It has been brought into this Court by its orders. No doubt the Plaintiff is now the owner of this sum of money and would be owner unless the decree of this Court passed in First Appeal No. 1 of 1937 is reversed by His Majesty in Council, but this Court has still the custody. We cannot accept Mr. Chatterjee's contention that by reason of the decree having been executed, his client has in law the possession of the said sum of money and this Court is “only mechanically in control”—a phrase which he used very often in the course of his argument. The sum was not the subject-matter of the execution proceedings started by his client. In those proceedings he prayed for and was granted possession of the immovable properties. In those execution proceedings he could not have asked for possession of this sum of money, for it was not mentioned and could not have been mentioned in the decree of the learned Additional District Judge and is not mentioned in the decree of this Court passed in the said first appeal. It is therefore still in the lawful custody of this Court. We think that this Court should be careful with regard to moneys in its lawful custody, especially as the sum is a heavy one and should not part with this sum of money unconditionally or make any order by reason of which Sm. Bibhabati Debi may lose the money if her appeal to His Majesty in Council succeeds. The Plaintiff has admittedly nothing in this world save and except the properties in suit which have been decreed to him. If this sum be allowed to be withdrawn by him without security, there would be no chance of recovering the same from him if Sm. Bibhabati Debi ultimately wins her case. In these circumstances we think that if we have the power to demand adequate security from the Plaintiff, we should exercise that power in this case.

The provisions of Or. 45, r. 13 deal with the powers of this Court when an appeal to His Majesty in Council has been filed. In Vasudeva Mudaliar v. Shadagopa Mudaliar(2), Lord Macnaghten pointed out that Courts in India are better fitted to exercise those powers than the Judicial Committee of the Privy Council. The first question is whether this Court would have the power to give directions with regard to this sum of money after the application for leave to appeal to His Majesty in Council has been filed. For a consideration of this question Or. 45, r. 13, sub-r. (2), cl. (d) only is material. This Court can at that stage give directions respecting the subject-matter of the appeal to His Majesty in Council. That clause indicates at any rate that this Court can at that stage make an order for the preservation of the subject-matter of the appeal. In a sense this sum of money can be regarded as the subject-matter of the appeal, for it is the income of the immovable properties in suit. An adjudication of title in respect of those immovable properties one way or the other would directly affect the ownership of this sum of money. Primâ facie therefore this Court would have the power under that clause to make an order touching this sum of money. Whether it would in the exercise of its discretion make an order in respect thereto, as asked for by Sm. Bibhabati Debi, is a different question. Even if cl. (d) does not cover this case, this Court at that stage would have the interent power to make an order concerning this sum of money. That this Court has powers outside those defined in Or. 45, r. 13 has been laid down in Kumar Sarat Kumar Roy v. The Official Assignee of Calcutta and Sailendra Nath Das v. Saroj Kumar Das in which the decision in Laliteswar Singh v. Bhabeswar Singh was noticed and distinguished. In the course of the argument we expressed these views on the powers of this Court, when an application for leave to His Majesty in Council has been presented, at least after the grant of the certificate. On this part of the case we proceed on the aforesaid view which we have expressed, leaving it open to the parties to re-argue the matter relating to the construction of Or. 45, r. 13, sub-r. (2), cl. (d) as also the matter as to whether apart from that rule, the Court has inherent power to make an order relating to the said sum of Rs. 2,78,489-1-8 before the Bench dealing with Privy Council matters, if they so desire, after the application for leave to appeal to His Majesty in Council has been filed. If that Court has at that stage that power, we are of opinion that we have the auxiliary power, the inherent power to make an interim order in aid of the order that may eventually be made by that Court. This in our judgment is the principle underlying the decision in Nanda Kishore Singh v. Ram Golam Sahu. In that case leave to appeal against a decree of this Court passed in favour of the mortgagee had been refused by this Court. No application for special leave had then been filed before His Majesty in Council, but an affidavit was filed in which it was stated that mortgagor intended to file an application for special leave. He made an application in this Court for stay of execution of the mortgage decree till such time as would enable him to file the application for special leave and obtain a stay order from His Majesty in Council. Two questions were raised, namely, (1) whether this Court had the power to grant the limited stay and (2) whether in its discretion it should. On the first point Mookerjee, J., gave an elaborate judgment, holding that this Court had the power. Holmwood, J., did not discuss this question but he was not prepared to dissent from that view. He disagreed with Mookerjee, J., on the second question only. Since then a Division Bench of this Court has agreed with the judgment of Mookerjee, J., on the first point. [Jewan Ram v. Commissioners of the Port of Calcutta]. No doubt the question of interim stay of proceedings in execution of the decree was the subject-matter of consideration in those cases but that was a fortuitous matter. The underlying principle of those cases was what we have stated above, namely that this Court has the inherent power to make an interim order, maintaining the status quo, till such time within which the application for leave to appeal to His Majesty in Council may be made and for such further period as within which an order may be obtained from the proper Court. In this case the time for filing the application for leave to His Majesty in Council, according to Mr. Chakravartti's statement would expire on the 10th November, 1941. The judgments of this Court are heavy. Srimati Bibhabati Debi applied for certified copies of the judgments and decree of this Court shortly after the judgments were delivered. She obtained those copies on the 13th June, 1941. In these circumstances the order that we make in respect of the said sum of Rs. 2,78,489-1-8 is that it will lie in this Court till the 26th November, 1941, unless in the meantime the Plaintiff gives security to the satisfaction of the lower Court. If no application for leave to appeal to His Majesty in Council is filed, the Plaintiff will be entitled to withdraw the same without furnishing security. If the application for leave is filed, the said sum of money would be subject to such orders as the Bench in charge of Privy Council matters may deem fit to make. Srimati Bibhabati Debi at whose instance we are directing the detention of the said, sum of Rs. 2,78,489-1-8, subject to the terms stated above, must give a written undertaking and file it in this Court to the effect that if the Plaintiff finally succeeds in the suit, she would pay interest to the Plaintiff at the rate of 6 per cent per annum on the said sum from the date when the Plaintiff filed his application (i.e, 25th March, 1941) till the 26th November, 1941, or such earlier date on which the money may be withdrawn by the Plaintiff on giving security. She must also give security to the satisfaction of the lower Court for the payment of the said interest or deposit in this Court Government Promissory Notes of the requisite value as security within three weeks from this date. If she does not file the said undertaking or give the said security within three weeks from to-day the Plaintiff will be at liberty to withdraw the said sum of Rs. 2,78,489-1-8 without furnishing security. As we are making a discretionary order in favour of Srimati Bibhabati Debi she must pay the costs of this application to the Plaintiff. Hearing-fee assessed at 20 gold mohurs.

Khundkar, J.:— I agree. The position presented to us in these proceedings is somewhat unusual, and there is no provision of the Code of Civil Procedure, and no judicial authority which precisely covers the facts. There is before us no application for stay of execution for the simple reason that the decree in question has been executed. The order of a Bench of this Court (S.K Ghose and McNair, JJ.), dated the 13th December, 1936 [reported in Bibhabati v. Ramendra Narayan] upon a Rule for stay of execution was in the following terms:—

“The Plaintiff decree-holder has already applied to the lower Court for execution of the decree and a conditional order has been made by the learned Subordinate Judge as I hare already mentioned. Therefore execution will proceed; but subject to the following conditions: As regards the amount of security it is not disputed that the annual income of the one third share in dispute is one lac of rupees and it is suggested that the appeal may last two years. Therefore the amount of two lacs of rupees would be the proper amount of security, Plaintiff will furnish security for this amount to the satisfaction of the Registrar of the Appellate Side in this Court.

Next the Manager, Court of Wards, will be appointed manager of the one-third share in dispute on the same terms as in the case of the one-third share possessed by Srimati Ananda Kumari Debi, Defendant Petitioner No. 3.

Should the appeal be not disposed of within two years, the applicants will have liberty to apply to have the question of security re-considered.”

Thereafter, on the 7th November, 1938, my learned brother and I made an order upon the application of the Appellant Srimati Bibhabati Debi by which we directed the Manager to continue depositing in Court the income as it came into his hands. We further directed that the Plaintiff Respondent would withdraw these monies only upon furnishing additional security. This order continued and partly implemented the order of the 13th December, 1936. It cannot be disputed that those two orders spent themselves on the 25th November, 1940, when the appeal (F.A No. I of 1937) was dismissed. Moreover, the decree has been executed, and possession has been delivered of the property which was the subject-matter of the suit, and of the appeal to this Court. In these circumstances we now have an application by the decree-holder for payment to him of the monies at present lying in this Court by virtue of the two orders just referred to. It is contended that these monies are the property of the applicant, and that this Court has no power to refuse to make an order releasing them from custody.

Or. 45, r. 13 of the Code of Civil Procedure does not in terms apply, because no application for leave to appeal to His Majesty in Council has yet been preferred. Indeed, on behalf of the Petitioner it has been contended that even if leave to appeal had been granted, this Court would have no jurisdiction to make an order detaining the monies in question, since these were not embraced in the decree, and would form no part of the subject-matter of the appeal to His Majesty in Council. As regards this contention, I have little doubt that the Court granting leave to appeal would have ample jurisdiction to make such orders as it considered necessary with reference to these monies. Or. 45, r. 13, sub-r. (2), cl. (d) is in these terms:—

“The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or other wise appearing to the Court,—

place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.”

Obviously, these monies were not mentioned in the decree, because they represent the fruits and profits of the decretal property accruing after the decree was passed. But to say that they would form no part of the subject-matter of an appeal to His Majesty in Council would be incorrect, for the reversal of the decree would deprive the Respondent of his right to these monies, just as indubitably as its affirmance would confirm his title to them.

On behalf of the Opposite Party, Srimati Bibhabati Debi, the unsuccessful Appellant in First Appeal No. 1 of 1937, an affidavit has been filed in which it is affirmed that she intends to appeal to His Majesty in Council. The question which we have to decide therefore is whether we have the power to make an order detaining the monies until the presentation of an application for leave to appeal is presented, or until the period of limitation prescribed for that purpose expires. The sum in question is large, and the Petitioner has no means other than the property which he has obtained by his decree. If he were allowed to withdraw the money, the Opposite Party would in all probability be unable to recover it in the event of her appeal succeeding. On the other hand I can see little prospect of any injury to the Petitioner if the detention of the money in this Court were to be prolonged for a strictly limited period. In the latter event we would be leaving the Bench which will deal with the application for leave to appeal, free to make such order, if any, as it might think fit in regard to these monies, whereas in the former we would be depriving that Bench of the power to make what it might consider to be a very necessary disposition of these monies pending the disposal of the appeal to His Majesty in Council. Reference has been made by my learned brother to the inherent powers of this Court under sec. 151 of the Code, and to a number of cases not essentially dissimilar to the present case, in which a power under that section was invoked. In applying the principle of those decisions, I feel prompted to say that some analogy is discernible between the situation with which we are here dealing and cases which arise out of applications for stay of execution. Although the order made by this Court on the 13th December, 1936, stated that execution would proceed, conditions were imposed, the effect of which was to deprive the decree-holders of the full fruits of his decree for the time being. The decree gave the Plaintiff an one-third share in the Bhowal Estate. The decretal property was to be held by the Manager of the Court of Wards as the Plaintiff's manager on the Plaintiff's behalf. But the future income of the decretal property was not to be paid to the Plaintiff unconditionally but was to be paid into Court, and the Plaintiff was permitted to withdraw it only upon furnishing security. This state of affairs was to continue until the disposal of the appeal. Had such a condition not been imposed, the Plaintiff would have come into immediate and unfettered possession not only of the corpus, but also of the income as and when it accrued. In a sense it is the trammels imposed by the orders of the 13th December, 1936, and the 7th November, 1938, which have prevented the Plaintiff from taking all in execution, and it is in consequence of those orders that these monies are now in the custody of the Court. To make an order that these monies are to remain in the custody of the Court unless security is furnished would be to prolong this situation.

In Nanda Kishore Singh v. Ram Golam Sahu, the facts were as follows:— Defendants against whom a mortgage suit had been decreed by the High Court on appeal, applied for leave to appeal to His Majesty in Council but their application was refused. Meanwhile the Plaintiffs had applied for execution of their decree. Defendants eventually applied to the High Court for stay of execution and filed an affidavit, stating that they had taken steps to apply to the Judicial Committee for special leave to appeal to His Majesty in Council. Mr. Justice Mookerjee observed in his judgment that the assumption that the Court has authority to grant a stay, only when an appeal or an application for leave to appeal is pending was groundless and was negatived by Or. 41, r. 5(2) of the Code of 1908 which expressly recognises the position that an Original Court may, for a limited time, stay proceedings in execution of its own decree, in view of a possible appeal to a superior tribunal. He held that a Court ought to act in aid of a possible order for stay that might thereafter be made.

In Sailendra Nath Das v. Saraj Kumar Das this Court held that apart from the powers under Or. 45, r. 13 to stay further proceedings in a suit under appeal to the Privy Council, the High Court has abundant inherent powers to stay such proceedings in a suitable case. Guidance is furnished by the following passage in that judgment:—

“And indeed from what the Judicial Committee hare said on more occasions than one as regards the advisability on the part of this Court to deal with matters of this description, at least in the first instance, it would seem that such power has been assumed.”

In Jewan Ram v. Commissioners for the Port of Calcutta it was laid down, following Nanda Kishore Singh v. Ram Golam Sahu and Sailendra Nath v. Saroj Kumar that pending the filing of an application for special leave to appeal against an order refusing to stay execution, the High Court had inherent power under sec. 151 of the Code to stay the execution of a decree, although the matter might not be strictly within the terms of Or. 45, r. 13.

Cl. (d) of Or. 45, r. 13(2) was recently considered in Ramanathan v. Viswanathan in which it was held, that the High Court has power in a proper case, even though no appeal had been filed against a final decree and the appeal pending before the Privy Council was only with respect to the preliminary decree, to pass necessary orders in order to safeguard the rights of an applicant who asks for stay of execution of the final decree. With regard to cl. (d), it was observed that under this clause the Court has power to give whatever direction it thinks necessary respecting the subject-matter of the appeal, whereas cls. (b) and (c) contemplate action by the Court with reference to the decree appealed from. Under sub-cl. (d) directions may be issued by the Court with reference to the subject-matter of the appeal.

This Court would have the power to make an order respecting the monies in question when an application for leave to appeal had been filed. Of this we have little doubt. And I am not prepared to say that we, at this stage, have no jurisdiction to give directions in aid of such a possible order if the circumstances call for it as urgently as they do in the present case. To hold otherwise would be to deny that this Court has an inherent power such as sec. 151 of the Code recognises, to control the subject-matter of an appeal to His Majesty in Council, which, if not regulated, might in a certain eventuality involve a party in irreparable injury.

The direction which we are making that the sum now in Court is for the period indicated not to be withdrawn without security, does not affect the monies paid in by the Plaintiff's manager after the 25th November, 1940, because these should have been remitted to the Plaintiff as they were not covered by any order of this Court, and payment into Court was entirely unauthorised.

C.C