Full Judgment Text
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PETITIONER:
DEO CHAND
Vs.
RESPONDENT:
SHIV RAM
DATE OF JUDGMENT:
24/08/1964
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
SIKRI, S.M.
CITATION:
1965 AIR 615 1965 SCR (1) 109
ACT:
Supreme Court Rules, 1950, 0. XLV, r. 5-Inherent powers-
Putting respondent in Supreme Court on terms-Whether in the
interests of justice.
HEADNOTE:
Pending appeal in the supreme Court, obtained possession of
the suit property favour. The appellants did not take
under 0.XLV, r. 13(2) of the code of Later, they applied to
the supreme court invoking the inherent powers of that
Supreme court Rules. the respondents (decree holders) in
execution of the decree in their any action for stay or
directions Civil Procedure (Act V of 1908). to put the
respondent on terms, court under 0. XLV, r. 5 of the
HELD : The Supreme Court cannot exercise any inherent powers
to put the respondents on terms, or to direct them to
furnish security for the delivery of the suit property or
for the payment of mesne profits, or to restrain them from
transferring the suit property. [115B-C].
The rule provides that the Rules of the Supreme Court do not
affect the inherent powers of the Court to make orders to
meet the ends of justice or to prevent abuse of process of
Court. Since the appellant would be entitled to recover
such mesne profits as the law allows, and any transfers of
the suit property would be subject to the law of his
pendens, to pass any orders restraining a party in
possession of property delivered by Court, cannot be in the
interests of justice. [115C-E].
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Miscellaneous Petition
No. 1223 of 1964 in Appeal from the judgment and decree
dated August 31, 1962, of the Madhya Pradesh High Court in
S. A. No. 597 of 1960.
Naunit Lal, for the petitioners.
The respondent did not appear.
ORDER
This application purports to be one under 0. XLV, rr. 2 and
5 of the Supreme Court Rules and contains the following
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prayers :-
(i) to direct the respondents to furnish
security for delivering possession of the
lands in dispute and for payment of mesne
profits and costs which the petitioners might
get in appeal;
(ii) to restrain the respondents from
transferring the lands in dispute or creating
any charge on the said
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lands pending the decision of the appeal in
this Hon’ble Court;
(iii) to send for the record of the case and
get the record printed under the supervision
of this Hon’ble Court;
(iv) to order an early hearing of the case.
Prayers nos. (i) and (ii) appear to have been made in view
of r. 5 which provides that nothing in the rules shall be
deemed to limit or otherwise affect the inherent powers of
the Court to make such orders as may be necessary for the
ends of justice or to prevent abuse of the process of the
Court.
The respondents-decree holders have obtained possession of
the land in suit, in execution of the decree in their
favour. The petitioners did not take any action under 0.
XLV, r. 13 (2), Civil Procedure Code, at the time the
respondents-decree holders applied for execution. If they
had applied to the High Court for the stay of execution, the
High Court could have either allowed execution on taking
security from the respondents for the due performance of any
order which this Court might have made on the appeal or
might have stayed the execution of the decree on taking
security from the petitioners-appellants for the due per-
formance of the decree appealed from or of any decree or
order which this Court might make on the appeal. The
question arises whether, after the decree has been executed
and the decree-holders have been put in possession by the
Court, this Court can put the respondents-decree holders to
terms and direct them to furnish security for their
delivering possession of the land in dispute and for payment
of mesne profits, if the appeal succeeds and whether the
Court can restrain the respondents-decree holders from
transferring the lands in dispute, pending the decision of
the appeal in this Court.
A notice of this petition was served on the respondents
decree-holders, but they did not put in appearance.
Mr. Naunit Lal, for the petitioners, has referred us to some
cases and to the provisions of the Code of Civil Procedure,
in this connection. Reliance is chiefly placed on the case
of Mst. Jariutool-Butool v. Mst. Hoseinee Begum(1) which
was followed by the Madras High Court in Narayanan Chetti v.
Arunachallam Chetti(2) and by the Bombay High Court in
Khushaldas Gokuldas v. Chimanlal Kalidas(8) in a case which
came before it after the enactment of the Code in 1908. In
the Privy Council case, the Privy Council expressed the
opinion that the
(1) 10 M.I.A. 196.
(2) I.L.R. 19 Mad. 140.
(3) I.L.R. 50 Bom. 453.
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Sadar Dewani Adalat was competent to require the decree-
holder to furnish the security or otherwise to provide for
the protection and security of the property in question
pending the appeal, notwithstanding that execution had
issued before the appeal was admitted. Their Lordships of
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the Privy Council did not express themselves with respect to
the reasons for the view and simply stated that they had
felt some difficulty in dealing with the case, but on
examining the Regulations and considering the nature of the
case, they were of opinion that an order might be made upon
the application. The Regulations referred to in the
submissions before their Lordships were the Bengal
Regulation XVI of 1797, Bengal Regulation XIII of 1808,
section II, clause (3) and Bengal Regulation V of 1798,
sections V and VI. Section 11 of the Bengal Regulation XVI
of 1797 provided for persons desirous of appealing from a
judgment of Sadar Dewani Adalat to the King-in-Council to
present their petition of appeal to the court of Sadar
Dewani Adalat which was empowered to admit the appeal and
proceed upon it as directed in the following sections of
that Regulation, under the several restrictions therein
prescribed. Section IV of the Regulation provided :
"In cases of appeal to his Majesty-in-Council,
the court of Sudder Dewanny Adawlut may either
order the judgment passed by them to be
carried into execution, taking sufficient
security from the party in whose favour the
same may be passed for the due performance of
such order or decree as his Majesty, his heirs
or successors, shall think fit to make on the
appeal, or to suspend the execution of their
judgment during the appeal, taking the like
security in the latter case from the party
left in possession of the, property adjudged
against him."
We find nothing in these provisions which empowered the
Court of Sadar Dewani Adalat to demand security from the
respondent decree holders or to restrain them from
transferring any property over which they had obtained
possession in execution of their decree before an appeal was
taken to the Privy Council.
Section TV, however, directed the Sadar Dewani Adalat to
allow the execution of the decree on taking sufficient
security from the decree-holder. In the case before the
Privy Council no such security had been taken and therefore
it may be said that the Court was held to be competent to
cover up its default by ordering the security to be
furnished by the decree-holders even after the decree had
been executed. Bengal Regulation XIII of 1808
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dealt with the procedure in cases which were appealable to
the Court of Sadar Dewani Adalat and could not possibly have
said anything in connection with the appeals to the Privy
Council from the orders of the Sadar Dewani Adalat. Section
V of Bengal Regulation V of 1798 provided for the
applicability of the principles of the rules contained in
ss. III and IV to cases in which the possession of property
was ordered to be transferred by the decree of any court of
justice and from which decree an appeal might be pending in
a superior court including his Majesty-in-Council. Section
III of the Regulation empowered the courts of appeal to
require further security during appeals if the security
already taken from the appellant for the stay of execution
of the decree be found to be insufficient and in case of the
failure of the appellant to furnish further security to
allow the execution of the decree, on taking requisite
security from the respondent. Section IV of the Regulation
made the transfers by the appellant, pending the appeal, to
be null and void.
We do not see how these provisions of ss. 111, IV and V of
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Regulation V of 1798 could have been any guide in the matter
before the Privy Council. Section VI of this Regulation
provides for the attachment of the property in case neither
of the parties were able to furnish security. This
provision, again, could not have been of any help in
determining the question whether the High Court could
require the decree-holders to furnish security after the
decree had been executed.
Order XLV, C.P.C., deals with matters in connection with
appeals to this Court. Rule 13 deals with the powers of the
Court whose decree is under appeal, during the pendency of
that appeal, and reads :
"13. (1) 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.
(2) The Court may, if it thinks fit, one
special cause shown by any party interested in
the suit, or otherwise appearing to the
Court,-
(a) impound any movable property in dispute
or any part thereof, or
(b) allow the decree appealed from to be
executed, taking such security from the
respondent, as the Court thinks fit for the,
due performance of any order which the Supreme
Court may make on the appeal, or
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(c) stay the execution of the decree
appealed from, taking such security from the
appellant as the Court thinks fit for the due
performance of the decree appealed from, or of
any decree or order which the Supreme Court
may make on the appeal, or
(d) 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,."
It is clear from sub-r. (1) that unless the Court otherwise
directs the decree has to be unconditionally executed.
Naturally, directions of the Court must be given before the
execution of the decree. If no directions are given, the
execution of the decree is unconditional, which means that
the decree-holder executes the decree without any conditions
attached and, after executing the decree, can deal with the
property he has obtained on such execution, in such manner
as the law allows him to deal with it. Sub-r. (2) lays down
the circumstances in which the Court can give directions
with respect to the subject matter of the suit, including
the execution of, the decree. Clauses (b) and (c) provide
respectively that security may be taken from the respondent
for the execution of the decree and that the execution of
the decree may be stayed on taking security from the
appellant for the due performance of any decree which this
Court might make on appeal. Such a direction for security
for the due performance of the order eventually passed by
this Court is to be given when the Court is dealing with the
question whether the execution of the decree be allowed or
be stayed. The sub-rule does not empower the court to give
such a direction subsequent to the execution of the decree.
Even the giving of such directions, when dealing with an
application for execution, is dependent on the satisfaction
of the court that some special cause exists for giving those
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directions. The provisions of r. 13 emphasize that the
decree-holder has, ordinarily, full right to execute the
decree unless, on special cause being shown, the court
orders him to furnish the security contemplated by cl. (b)
of sub-r. (2). Rule 14 provides for the increase of the
security furnished by either party when it is found to be
inadequate. If the appellant fails to deposit the
additional security ordered, the decree is to be executed
and if it is the decree-holder respondent who defaults to
furnish the additional security, the court can stay the
further execution of the decree and restore the parties to
the position in which they respectively were when
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the security which appeared inadequate was furnished or give
such directions respecting the subject-matter of the appeal
as it thought fit. The rule comes into play only when
security had been furnished in the first instance by the
decree-holder-respondent or by the judgment debtor-appellant
and does not deal with cases where execution had been
allowed by the Court without imposing any condition. The
legislature could have provided in this ,rule or any other
rule for the court demanding security afresh if
circumstances came into existence during the pendency of the
appeal providing justification for the demand of security
from the decree-holder-respondent who had executed his
decree. It does not so provide.
So far we have been dealing with the powers of the High
Court and the courts from whose orders, appeals, be pending
in this Court. We have not been referred to any decision of
this Court in which this Court had ordered any decree-holder
to furnish security for the due performance of the decree
that might be passed by this Court when the decree-holder
had already executed his decree. Nor have we been referred
to any provision of law dealing with this question. Order
XX, r.1, Supreme Court Rules however deals with the question
of staying the execution of a decree and reads :
"The filing of an appeal shall not prevent
execution of the decree or order appealed
against but the Court, may, subject to such
terms and conditions as it may think fit to
impose, order a stay of execution of the
decree or order, or order a stay of
proceedings, in any case under appeal to the
Court."
There is no rule which provides for this Court’s giving
directions in connection with the execution of the decree.
In fact, no such occasion can arise as the decree-holder is
free to execute his decree and the powers of the court whose
decree is under appeal, in correction with the execution
application, are laid down in 0. XLV, of the Code.
Order XLV, r. 5, of the Supreme Court Rules, simply provides
that the inherent powers of this Court, to make necessary
orders to meet the ends of justice or to prevent abuse of
the process of the Court, are not affected by the rules.
Mr. Naunit Lal has not urged that the reliefs prayed for
with respect to the demanding of the security from the
respondents or restraining them from transferring the
property, were to be granted in the exercise of the inherent
powers of this Court. The existence of such an inherent
power would be a matter of grave doubt when the Code
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sufficiently deals with the right of the decree-holder to
execute the decree and the powers of the High Court to give
directions in connection with such execution. No occasion
for the exercise of any inherent power can arise when the
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High Court itself does not give any such directions and had
not been asked by the judgment-debtor appellant to stay the
execution of the decree. To exercise any such inherent
power would be not for the prevention of the abuse of the
process of the Court but may be to encourage it inasmuch as
the judgment-debtor who had been in default in taking
necessary action at the proper time would be encouraged to
ask for that action after the execution of the decree and
during the pendency of the appeal in this Court. Law
contemplates transfers by a party pending litigation, does
not prohibit them but makes them subject to the result of
the litigation. To pass orders restraining a party in
possession delivered by the Court cannot, prima facie, be in
the interests of justice.
We are therefore of opinion that the aforesaid reliefs
cannot be granted after the decree-holders had been put in
possession of the property in suit in due execution of their
decree. We may note that the failure of the appellants to
obtain such reliefs from this Court need not necessarily
prejudice them in case they succeed in the appeal. Any
transfers of the property in suit made by the respondents-
decree holders during the pendency of the appeal would be
subject to the law of his pendens. The appellants would be
entitled to recover such mesne profits, as the law allows
from the respondents for the - period of their possession.
We therefore reject this application with respect to the
reliefs mentioned in clauses (i) and (ii) of para 11 of the
application.
We have not considered whether any other relief, for the
protection of the interests of the petitioners-appellants,
can be granted, as no other relief in that regard had been
sought.
With respect to the prayer in clause (iii), we order that
the record of the case be sent for and the papers for use of
this Court be printed under the supervision of the
Registrar.
With regard to the prayer in clause (iv), the
petitioners appellants can take proper steps after the
printing of the record.
Prayers 1 and 2 of -the petition rejected.
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