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2019 DIGILAW 169 (AP)

Grandhi Yugander v. Jyothi Financiers, Guntur District

2019-08-05

M.SEETHARAMA MURTI

body2019
ORDER : M. Seetharama Murti, J. 1. This civil revision petition, under Article 227 of the Constitution of India, is filed by the judgment Debtors assailing the order, dated 27.12.2018, of the learned I Additional Senior Civil Judge, Guntur, passed in EP No. 326 of 2009 in OS No. 306 of 1999. 2. I have heard the submissions of the learned Counsel for the petitioners/judgment Debtors ('JDrs', for brevity). Though the 1st respondent/Decree Holder (DHr) is served with notice, it did not enter appearance. However, on the day the matter is listed for pronouncement of orders, the 1st respondent/DHr entered appearance. Hence, on 2.8.2019, further submissions of both the sides are heard. The 2nd respondent is stated to be a formal party. 3. Learned Counsel for the JDrs submits as follows: "The DHr filed a suit against the JDrs for specific performance. The said suit was decreed. The JDrs filed an appeal in AS No. 330 of 2008 on the file of the Court of the learned HI Additional District Judge, Guntur. The said appeal was dismissed. The JDrs preferred a second appeal in SA No. 965 of 2009 on the file of this Court. In SAMP No. 2108 of 2009 in the said SA No. 965 of 2009, on 23.10.2009, this Court granted the following interim order: 'Interim stay as prayed for'. However, the DHr filed an execution petition in EP No. 326 of 2009 inter alia stating that as per the decree direction, the balance sale consideration of Rs. 50,000/- is deposited into Court, on 21.11.2002, vide VR No. 619 of 2002 and requesting the executing Court to execute the sale deed as per the terms of the decree. The JDrs having entered appearance have not filed a counter. However, it was brought to the notice of the executing Court that the stay orders are granted by the High Court in the second appeal. The fact that the stay orders granted by the High Court in the second appeal was brought to the notice of the executing Court is borne out by the docket sheet/proceeding sheet maintained in the execution petition by the executing Court as the executing Court mentioned about the receipt of copy of the stay orders from the High Court on the proceeding sheet, on 1.12.2009, 29.12.2009 and 2.2.2010. However, on 29.12.2018, the executing Court directed the DHr to file stamp papers. However, on 29.12.2018, the executing Court directed the DHr to file stamp papers. Further, on filing of the non-judicial stamp papers, permission was granted to register the sale deed in accordance with law on deposit of process fee. The said order, impugned in this revision, was passed, on 27.12.2018. Despite the fact that stay orders are granted, as prayed for, in favour of the appellants/JDrs in SAMP No. 2108 of 2009 in SA No. 965 of 2009, the executing Court directed the DHr for filing stamp papers, engrossing the sale deed on the stamp papers and registration of the sale deed. The executing Court ought not to have executed the sale deed and ought not to have permitted for registration of the sale deed in view of the stay orders granted in favour of the JDrs in their above said second appeal. The orders directing to file stamp papers and the execution and registration of the sale deed are non est, in the light of the stay orders granted by this Court and the sale deed that was executed and registered inspite of the stay order by the High Court granted against the execution of the decree had no legal validity and has to be ignored. The DHr played fraud on the Court. The executing Court wrongly applied the orders, dated 28.3.2018, of the Supreme Court in Criminal Appeal Nos. 1375-1376 of 2013 in Asian Resurfacing of Road Agency Private Limited v. Central Bureau of Investigation, 2018 (2) ALD (Crl.) 15 (SC), though the guidance in the said precedent is not applicable to the execution proceedings. In the said decision, the Supreme Court, at Paragraph (35) held as follows: 'In view of the above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The Trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.' 3A. Learned Counsel for the DHr, having not disputed the facts and the events and also the fact that the stay order was granted in the second appeal; and that it was in force by the time the sale deed was executed in the execution proceedings, had submitted that since the sale deed is already executed, the DHr undertakes not to make any alienations pursuant to the sale deed pending disposal of the second appeal; and hence, no order need be granted in this revision petition, in view of the above undertaking, which the DHr is offering to give, and his further submission to abide by the same. 4. A plain reading of the above precedent indicates that the direction of the Supreme Court is related to all pending cases, where the stay against proceedings of a civil or criminal trial is operating and in such cases only, the stay order operating will come to an end after expiry of six months. Hence, the said direction does not apply to cases other than the cases where trials are in progress. Hence, the said direction does not apply to cases other than the cases where trials are in progress. Thus, the stay orders granted in the second appeal are continuing to operate. Further, the stay orders also continue to operate till either they are vacated or till the second appeal is disposed of by the High Court. Since the stay orders are communicated to the executing Court and the executing Court is aware of the stay orders, and the said orders are in operation and are in force, the orders of the executing Court in permitting to file stamp papers and its further actions in executing the sale deed and permitting registration of the sale deed are non-est in the eye of law. 5. I have given thoughtful consideration to the facts & submissions. 6. Before proceeding further it is profitable to refer to the legal position enunciated in the decision in Mulraj v. Murti Raghonathji Maharaj, AIR 1967 SC 1386 , rendered by a Bench of three Hon'ble Judges of the Supreme Court, wherein it was held as follows: As we have already indicated, an order of stay is as much a prohibitory order as an injunction order and unless the Court to which it is addressed has knowledge of it, it cannot deprive that Court of the jurisdiction to proceed with the execution before it. But there is one difference between an order of injunction and an order of stay arising out of the fact that an injunction order is usually passed against a party while a stay order is addressed to the Court. As the stay order is addressed to the Court, as soon as the Court has knowledge of it, it must stay its hand; if it does not do so, it acts illegally. Therefore, in the case of a stay order as opposed to an order of injunction, as soon as the Court has knowledge of it, it must stay its hand and further proceedings are illegal; but so long as the Court has no knowledge of the stay order it does not lose the jurisdiction to deal with the execution which it has under the Code of Civil Procedure. Though the Court which is carrying on execution is not deprived of the jurisdiction the moment a stay order is passed, even though it has no knowledge of it, this does not mean that when the Court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the Court has knowledge of the stay order. We are of opinion that Section 151 of the Code of Civil Procedure would always be available to the Court executing the decree, for in such a case, when the stay order is brought to its notice it can always act under Section 151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so. Though, therefore, the Court executing the decree cannot in our opinion be deprived of its jurisdiction to carry on execution till it has knowledge of the stay order, the Court has the power in our view to set aside the proceedings taken between the time when the stay order was passed and the time when it was brought to its notice, if it is asked to do so and it considers that it is necessary in the interests of justice that the interim proceedings should be set aside. But that can only be done by the Court which has taken the interim proceedings in the interest of justice under Section 151 of the Code of Civil Procedure provided the order is brought to its knowledge and a prayer is made to set aside the interim proceedings within a reasonable time. Otherwise the interim proceedings in our opinion are not a nullity and in the absence of such exercise of power by the Court executing the decree under Section 151, they remain good for all purposes. 7. In the instant case it is borne out by the record that the executing Court is fully aware of the stay orders granted, on 23.10.2009, by the High Court in SAMP No. 2108 of 2009 in SA No. 965 of 2009, and yet it passed further orders in the execution petition, despite the stay orders being in force and operation. In the instant case it is borne out by the record that the executing Court is fully aware of the stay orders granted, on 23.10.2009, by the High Court in SAMP No. 2108 of 2009 in SA No. 965 of 2009, and yet it passed further orders in the execution petition, despite the stay orders being in force and operation. Hence, I am of the considered view that the subsequent orders of the executing Court with regard to execution and registration of the sale deed in favour of the DHr, are all illegal and that therefore, the same have to be declared as such. However, the validity of the sale deed eventually depends upon the result of the second appeal. In the event of the success of the DHr in the second appeal, the stay orders granted pending disposal of the second appeal stand terminated and the sale deed though executed with the knowledge of stay orders re-gains its validity and legality in such an event. Even in a case where the executing Court has no knowledge of the orders of stay, this does not mean that when the Court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the Court has knowledge of the stay order. In such cases, Section 151 of the Code of Civil Procedure would always be available to the Court executing the decree, for in such a case, when the stay order is brought to its notice it can always act under Section 151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so. In such cases the party who suffered injustice may have to go the executing Court and make a prayer to set aside the interim proceedings within a reasonable time. The instant case is not a case where the executing Court has no knowledge of the orders of the stay. In such cases the party who suffered injustice may have to go the executing Court and make a prayer to set aside the interim proceedings within a reasonable time. The instant case is not a case where the executing Court has no knowledge of the orders of the stay. As already noted the executing Court is having knowledge of the orders of stay granted in the second appeal and yet the executing Court proceeded to execute the registered sale deed and directed the sale deed to be registered and ultimately the sale deed was registered. Hence, in view of the precedential guidance, it can be said that the executing Court acted illegally. However, the executing Court cannot be faulted as the said acts were done on an erroneous view that the stay orders are not in operation/force. Be that as it may. Though this Court can direct the JDrs to approach the executing Court and seek the remedy, which the law permits, such a course of driving the JDrs to the Court below may not be necessary in the facts and circumstances of the case stated supra. In Surya Dev Rai v. Ram Chander Rai and others, 2003 (5) ALD 36 (SC) : AIR 2003 SC 3044 , the Supreme Court held as follows: Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Therefore, this Court is of the opinion that this revision can be disposed of with appropriate directions. 8. In the result and for the aforesaid reasons, this Court directs that the sale deed executed by the executing Court in favour of the DHr vide document No. 653 of 2019, dated 31.12.2018, registered in the office of the Joint Sub-Registrar, Nallapadu, Guntur District, shall remain in abeyance till the stay orders granted in the second appeal are either vacated or till the same stand terminated in the event of the dismissal of the second appeal. Accordingly, and as a sequel to this order, the DHr is directed to surrender the subject original sale deed in question to the executing Court forthwith for safe keeping until any further interlocutory orders are passed in the second appeal or until the disposal of the second appeal, as such a course helps in avoiding any further dealings by the DHr based on the said sale deed and in maintaining status quo. 9. The civil revision petition is disposed of accordingly. 10. There shall be no order as to costs. 11. Pending miscellaneous petitions, if any, shall stand closed.