Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 1239 (JHR)

Tek Lal Mari v. Ram Kishun Marik

2006-10-10

M.Y.EQBAL

body2006
ORDER M.Y. Eqbal, J. 1. Heard Mr. V.K. Prasad, learned Counsel appearing on behalf of the appellants and Mr. G.N. Chandra, learned Counsel appearing on behalf of the respondents. 2. In this interlocutory application purported to have been filed under Order 41 Rule 5 of the Code of Civil Procedure (in short CPC), the appellants have prayed for stay of further proceeding of Execution Case No. 6 of 2006 pending in the Court of Subordinate Judge-III, Giridih till the disposal of this Second Appeal. 3. For better appreciation of law that shall be discussed herein below, it is pertinent to mention here the brief facts of the case. The plaintiffs- respondents filed a partition suit being No. 61 of 1986 for a preliminary decree in respect of the joint family properties. The suit was dismissed in terms of judgment and decree dated 6.6.1988. The plaintiffs-respondents; being aggrieved by the said judgment, preferred appeal before the District Judge, Giridih being Title Appeal No. 107 of 1988. The appeal was finally disposed of in terms of judgment and decree dated 6.12.2003 and preliminary decree was passed for partition of 50 paise share out of the suit land detailed in Schedule B of the plaint. The defendants-appellants then preferred this Second Appeal challenging the judgment and decree passed by the District Judge, Giridih in the appeal. 4. Mr. V.K. Prasad, learned Counsel appearing for the appellants, on query, informed this Court that no appeal has been preferred against the final decree passed by the Court below in Partition Suit No. 61 of 1986. In this interlocutory application also, it has not been stated by the appellants that they have challenged the final decree passed in the suit. Admittedly, after the preliminary decree was passed on 6th December, 2003, a proceeding for preparation of final decree was initiated and final decree was passed on 30.3.2006. In between 6th December, 2003 and 30th March, 2006, no application under Order 41 Rule 5 CPC was filed by the appellants in this appeal during the pendency of final decree proceeding praying for stay of preparation of final decree. It was only after the final decree was put in execution in Execution Case No. 6 of 2006, the instant application has been filed for stay of execution of the final decree. 5. It was only after the final decree was put in execution in Execution Case No. 6 of 2006, the instant application has been filed for stay of execution of the final decree. 5. In the background of the aforesaid facts, now the interesting question that emerges for consideration is as to whether in I he facts and circumstances of the case, it is just and proper to exercise discretion under Order 41 Rule 5 CPC for staying the execution proceeding. Normally, where an appeal is pending against a preliminary decree, passing of final decree is generally to be stayed. Law has been well settled by the various High Courts in this regard. Reference may be made to the decisions in the cases of Chotel Lal v. Sultan Singh (1928) 111 Indian Cases, 383; in the case of Jeta Singh v. Ganpat Rai AIR 1930 Lahore 105 and in the case of Diwan Chand and Ors. v. Nank Chand AIR 1932 Lahore 271 . 6. It is equally well settled that merely because an appeal is preferred against a decree, there shall not be stay of the execution of the decree appealed against automatically. In the case of Basheshar Nath Khanna & Sons v. Grindlay & Co. Ltd., Lahore and Ors. AIR 1935 Lahore 181 His Lordship, Agha Haidar, J. observed: There cannot be any doubt that the trial Court has jurisdiction in the circumstances similar to those of the present case to prepare and pass a final decree notwithstanding the pendency of the appeal. The question is whether there are any circumstances, which would justify this Court in issuing an order to the Court below to stay its hands and not to exercise its jurisdiction. In my judgment the mere fact that an appeal has been filed against a preliminary decree is no justification whatsoever for staying the hand of the Court below and ordering it not to go on in the ordinary course with the proceedings leading up to the final decree. The final decree would not do any arm to any party and if the defendants appeal is unsuccessful the execution of the decree whatever it may be would be expedited: vide, 1931 All 386(1) and 1933 Lah. 724(2). The final decree would not do any arm to any party and if the defendants appeal is unsuccessful the execution of the decree whatever it may be would be expedited: vide, 1931 All 386(1) and 1933 Lah. 724(2). I know there are some earlier decisions of this Court, which seem to lay down that when an appeal from a preliminary decree in a mortgage suit is the subject matter of an appeal to this Court the trial Court should be ordered not to proceed to pass the final decree. I would however prefer to follow the recent decisions already quoted and dismiss with costs the prayer for stay of further proceedings. 7. In the case of Banwarilal v. Nanak Chand and Anr. AIR 1933 Lahore 724, His Lordship Addison, J.; referring the case of Shivamal v. Rupnarain 1928 I.C. 383, was also of the same view that mere filing an appeal arising out of a preliminary decree does not preclude the trial Court from passing a final decree and hence, question of stay of further proceeding of Execution Case after preliminary decree depends upon particular facts of each case and unless the conditions of Order 41 Rule 5 CPC are fulfilled, stay cannot be ordered. 8. In the case of Punjab Sindh Bank Ltd v. Kanshi Ram AIR 1927 Lahore 760, the Lahore High Court was considering a case where a preliminary decree for sale of mortgaged property was passed. In the meantime, decree holder-mortgagee filed an appeal in the High Court against the preliminary decree. No order staying further proceeding after the preliminary decree was obtained from the Court and consequently, the trial Court passed a final decree. After the final decree was passed, the lower court stayed the sale of the property. The Court in the said case observed as follows: After the final decree was passed the lower Court had no jurisdiction to stay the sale of the property which was directed to be sold by virtue of the final decree. The learned Counsel for the respondents-judgment-debtors has frankly Admitted before me that he cannot support the view of the learned Senior Subordinate Judge but it is alleged that it is the other mortgage in whose interest the stay of the sale has been ordered but there is no appearance on his behalf before me. The learned Counsel for the respondents-judgment-debtors has frankly Admitted before me that he cannot support the view of the learned Senior Subordinate Judge but it is alleged that it is the other mortgage in whose interest the stay of the sale has been ordered but there is no appearance on his behalf before me. The order of the lower Court cannot be defended on any ground whatsoever and must, therefore, be set aside, but there is nothing on the record to show that any of the other parties concerned moved the Court to slay the sale, and I am, therefore, unable to grant any relief to the decree-holder by way of cost of these proceedings. 9. Similarly, in the case of Santokh Singh v. Siri Ram , facts of the case was that the trial Court passed a preliminary decree in a suit for rendition of accounts and appointed a Pleader Commissioner to examine the accounts. The defendants preferred an appeal before the District Judge and filed an application under Order 41 Rule 5 and Section 151 CPC for stay of further proceeding pending before the Commissioner till the disposal of the appeal. The District Judge declined to pass an order of stay. The said order was challenged before the High Court and the High Court held as follows: Secondly, it is obvious that even if a particular practice has been established it cannot be countenanced by the Court if it is contrary to the express provisions of law. Rule 5 of Order 41 Civil P.C., declares in unambiguous language that an appeal shall not operate as a stay of proceeding under a decree or order appealed from except so far as the appellate Court may order. The use of the word may confers a discretion on the Court to stay or not to stay proceeding and it is idle to suggest that this discretion must always be exercised in favour of the appellant. Thirdly, it is unreasonable, that save in exceptional circumstances an unsuccessful litigant should be permitted to protract the litigation by requiring that accounts should not be taken until after the appeal has been heard and decided. 10. Similarly, in the case of Dhannalal Sardarmal v. Noshirwanji Godrej and Anr. Thirdly, it is unreasonable, that save in exceptional circumstances an unsuccessful litigant should be permitted to protract the litigation by requiring that accounts should not be taken until after the appeal has been heard and decided. 10. Similarly, in the case of Dhannalal Sardarmal v. Noshirwanji Godrej and Anr. , the question for consideration was that an application for stay of further proceeding consequent upon passing of preliminary decree was filed in the appeal and ultimately the Court observed as follows: The decisions in AIR 1930 Lah. 108(A) and AIR 1932 Lah 271(B) relied upon by Mr. Pande being practically based on the aforesaid two decisions of the Lahore High Court we really will have to examine how far the observations of the Full Bench in ILR 39 All 647: AIR 1917 All 163 (E) as indicated above and approved of by the Privy Council in Jowand Hassuin v. Gendan Singh AIR 1926 PC 93 (F), should be taken to lead to the inference that where an appeal is preferred against a preliminary mortgage decree and order for the stay of further proceedings for passing final decree ought to be made. Reference was made by the later Full Bench of Allahabad High Court to the provision of Order 41 Rule 5 C.P.C. and it was observed that the said provision made it dear that an appeal does not operate as stay of proceeding under a decree or order appealed from and that proceeding relating to passing of a final decree in a mortgage suit must be held to be proceedings under a decree. Lahore High Court itself in a later decision in Basheshar Nath Khanna and Sons v. Grindlay and Co. Ltd., AIR 1935 Lah 181 (1)(H), has not followed its earlier decisions and has held that the mere fact that an appeal has been filed against a preliminary decree is no justification whatsoever for staying the hand of the Court below and ordering it not to go on in the ordinary course with the proceeding leading upto final decree. According to the view taken in that case the final decree would not do any harm lo any party. On the other hand, it was said, in the case the defendants appeal be unsuccessful execution of the decree might be expedited. I respectfully agree with this view. According to the view taken in that case the final decree would not do any harm lo any party. On the other hand, it was said, in the case the defendants appeal be unsuccessful execution of the decree might be expedited. I respectfully agree with this view. Addison, J., expressed practically the same view in Banwari Lal v. Nanak Chand, A.I.R 1933 Lah 724 (1). It is significant that the learned judge referred to his earlier decision, in 111 Ind Cas 383 (Lah) (D) and pointed out that head- note in the report was misleading and that he had not used the word generally quoted in the head-note. 11. At this juncture, I would like to refer the provision of Order 41 Rule 5 CPC which reads as under: Stay by Appellate Court-(1) 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 any appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree Explanation - An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.) (2) Stay by Court which passed the decree: Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing there from, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under Sub-rule (1) or Sub- rule (2) unless the Court making it 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 upon him. (4) [Subject to provisions of Sub-rule (3)], the Court may make an ex parte order of stay of execution pending the hearing of the application. (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in Sub-rule (3) or Rule 1, the Court shall not make an order staying the execution of the decree.] 12. From bare perusal of the aforesaid provision, it is manifestly clear that an appeal shall not operate as stay of proceeding in a decree or Order appealed from nor the execution of decree shall be stayed by reason of filing of appeal unless the Court, for sufficient reasons to be recorded, stay the execution of such decree. Sub-rule (3) of Rule 5 CPC makes it clear that an order of stay of execution of a decree shall not be passed unless the Court is satisfied that the application for stay has been made without unreasonable delay. Provision of Order 41 Rule 5 CPC has been recently discussed by the Supreme Court in the case of Atma Ram Properties Pvt. Ltd. v. Federal Motors Pvt. Ltd . The Apex Court observed as follows: It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate court and the appellate court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate court would be inclined to pass an order of stay. The only guiding factor, indicated in Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate court is that in spite of the appeal having been entertained for hearing by the appellate court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the court dealing with a prayer far the grant of stay asks itself is: why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted. 13. The Supreme Court further held that power to grant stay is discretionary and flows from jurisdiction conferred on appellate Court which is equitable in nature. To secure order of stay merely by preferring an appeal is not statutory right conferred on the appellant. So also, an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, the applicant, for order of stay, must do equity for seeking equity. 14. In the instant case, as noticed above, the appellants have preferred this appeal against the preliminary decree and no appeal has been filed against the final decree. Moreover; after the preliminary decree was passed in 2003, a proceeding for preparation of final decree was initialed and a final decree was passed on 30.3.2006. In between 2003 to 2006, no application for stay of preparation of final decree was filed by the appellants nor the final decree was challenged by preferring an appeal before any Court of law. Moreover; after the preliminary decree was passed in 2003, a proceeding for preparation of final decree was initialed and a final decree was passed on 30.3.2006. In between 2003 to 2006, no application for stay of preparation of final decree was filed by the appellants nor the final decree was challenged by preferring an appeal before any Court of law. In the facts and circumstances of the case and also in the light of the law, discussed herein above, in my considered opinion, when during the pendency of the proceeding for preparation of final decree no application was made in an appeal arising out of preliminary decree for stay of preparation of the final decree, then execution of final decree in the execution proceeding cannot be stayed on an application filed under Order 41 Rule 5 CPC in an appeal arising out of a preliminary decree. 15. Besides the above, I am of the view that there are no sufficient grounds also for stay of the execution proceeding inasmuch as the instant application for stay has been filed after inordinate delay and also that no substantial loss will be caused to the appellants in the event the final decree is executed. 16 For the aforesaid reasons, I do not find any merit in this interlocutory application which is, accordingly, dismissed.