9911796707
TMI Blog1967 (3) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... t the suit should fail for no suit could continue under the Act without such permission. The Munsif dismissed the suit. - The respondent then went in appeal. The appeal court upheld the order of the Munsif taking the view that the permission granted after the stay order had been passed was a nullity. The respondent then came in second appeal to the High Court, and the only point considered there was whether the permission granted by the Magistrate was a nullity or not. It may be mentioned that though the stay order had been passed on September 29, 1961 by the District Magistrate, the Magistrate who was dealing with the matter of permission, had no knowledge of it when he granted the permission on October 4, 1961. The question that arose before the High Court therefore was whether the permission granted in these circumstances could be said to be a nullity. The High Court held that the stay order could not and did not take away the jurisdiction of the Magistrate from the moment it was passed and that as the Magistrate had no knowledge of or information about the stay order when he granted the permission on October 4, 1961, that permission was with jurisdiction and the suit would ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d High Court seems to have taken an intermediate view and has held that where rights' of third parties like a stranger auction-purchaser have intervened the fact that the executing court had no knowledge would protect third parties. The earliest case on the point is Bessesswari Chowdhurany v. Horro Sunder Mozmadar and others(1). In that case a Division Bench of the Calcutta High Court held that an order staying execution of a decree against which an appeal is pending is in the nature of a prohibitory order, and as such would only take effect when communicated. If a property is sold before such an order is communicated to the court holding the sale, such sale is not void and cannot be treated as a nullity . In Hukum Chand Boid v. Kamalanand Singh(2), another Division Bench of the same High Court dissented from the view taken in Besseswari Chowdhurany's case(1) and held that an order of stay takes effect from the moment it is passed and the knowledge of the court to which it is addressed is immaterial and from the moment the order is passed the court to which the application is made for execution has no authority to execute it. It is these two cases of the Calcutta High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to stay its hand till further orders. It is clear that as soon as a stay order is withdrawn, the executing court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been withdrawn. The jurisdiction of the court is there all along. The only effect of the stay order is to prohibit the executing court from proceeding further and that can only take effect when the executing court has knowledge of the order. The executing court may have knowledge of the order on the order being communicated to it by the court passing the stay order or the executing court may be informed of the order by one party or the other with an affidavit in support of the information or in any other way. As soon therefore as the executing court has come to know of the order either by communication from the court passing the stay order or by an affidavit from one party or the other or in any other way the executing court cannot proceed further and if it does so it acts illegally. There can be no doubt that no action for contempt can be taken against an executing court, if it carries on execution in ignorance of the order of stay and this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a nullity so long as the stay order is in force. It is argued that this view would introduce uncertainty inasmuch us proceedings may go on and it may take sometime- whether long or short-for the stay order to reach the court. There is in our opinion no question of uncertainty, even if we hold that the stay order must come to the knowledge of the court to which it is addressed before it takes effect. The court may receive knowledge either on receipt of an order of stay from the court that passed it or through one party or the other supported by an affidavit or in any other way. There is in our opinion no uncertainty by reason of the fact that the court to which the stay order is addressed must have knowledge of it before it takes effect for it can always be proved that the court to which the stay order was addressed had knowledge of it and that is not a matter which should really create any difficulty or uncertainty. Once it is clear that a stay order is in the nature of a prohibitory order, knowledge of it by the court which is prohibited is essential before the court is deprived of the power to carry on the proceedings. As was pointed out in Bassesswari Chowdhurany's ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 s. 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 S. 151, they remain good for all purposes. What we have said about execution proceedings applies with greater force to stay orders passed in transfer applications, as 'in the present case. In the case of execution proceedings at any rate there is an appeal in which a stay order is passed; the transfer proceedings are collateral _proceedings and even though the superior authority may have the power to stay it cannot deprive the inferior authority having jur ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
