Shrimati Malan Devi vs Brij Lal and Others

Dua, J.—Brij Lal has a decree against Jagan Nath. In execution of that decree Shrimati Malan Devi petitioner in these proceedings filed certain objections and having failed therein instituted a suit under Order XXI, rule 63, Code of Civil Procedure. In execution of his decree Brij Lal had got attached a residential house in which Shrimati Malan Devi and respondents Des Raj, Ishar Devi, Shanti Devi and Daulat Ram claim certain share. In the suit filed by Shrimati Malan Devi, the usual declaration has been sought that the attached house is not liable to attachment and sale in execution of the decree of Brij Lal against Jagan Nath. Along with the plaint an application under Order 39, rules 1 and 2, and section 151, Code of Civil Procedure, was also stated to have been filed praying for staging the auction sale of the attached house. On that application on 25th January 1960 the learned Subordinate Judge directed execution to be stayed till the decision of the case. Notice was also issued to the opposite party for 8th February 1960. On 16th February 1960 it appears that on a representation having been made on behalf of the decree-holder the court felt that it had no power to restrain the executing Court to stay the proceedings. On this view of the matter the Court felt that its order dated 25th January 1960 was wrong. It, therefore, vacated the stay order and instead directed Brij Lal decree-holder not to pursue the execution of the decree till the decision of the application filed by Malan Devi for stay of the execution. The Court also added a note at the bottom of its order that the executing court should be informed of the said order. It appears that inspite of this direction warrants for the auction and sale of the attached house were somehow got issued from the executing Court.

On 2nd May 1960 the petitioner moved the trial Court for giving effect to its directions dated 16th February 1960 and also prayed for taking proceedings for contempt of Court against the decree-holder. It was stated in this application that the sale of the house in question was fixed for 14th May 1960 and it was prayed that necessary orders be passed for effecting a stay of the sale. The learned Subordinate Judge issued notice of this application on payment of process fee but, curiously enough, fixed 17th May 1960 for the disposal of the petition. Feeling aggrieved by this order the petitioner has come to this Court with a prayer that this Court may direct stay of the sale fixed for 14th May 1960.

The revision came up for preliminary hearing before D.K. Mahajan J on 11th May 1960 when records were sent for and an interim stay order staying sale was granted. On 22nd August 1960, after examining the records, the learned Single Judge issued notice to the respondents and also directed the stay to continue.

Shri Sarin has submitted that once the trial Court thought that it was a fit case for adjudicating upon the allegations made in the petition dated the 2nd May 1960 the trial Court should have either disposed of the petition before the date fixed for the proposed sale of the attached house or if the petition could not be so disposed of, the Court below should have directed stay of the proposed sale.

On behalf of the respondents, Shri M.L. Sethi has submitted that the necessary directions had been issued by the trial Court on 16th February, 1960, and that it was for the plaintiff to approach the executing Court and get the necessary relief in respect of stay of the sale. The counsel has also contended that omission to stay the sale is, in the circumstances of this case, justified because, as already observed by the trial Court on 16th February 1960, it was not within the trial court''s competence to give any mandatory directions to the executing, court which is a court of collateral jurisdiction. In so far as the question of fixing the next date on the application dated 2nd May 1960 is concerned it has been emphasised that this is a matter exclusively within the discretion of the trial Court and this Court should not, and indeed cannot, interfere with this discretion on revision. Incompetency of revision against interlocutory orders has also been emphasised by Shri Sethi.

In my view merely because an order happens to be interlocutory, does not by itself debar this Court from interfering u/s 115 of the Code of Civil Procedure. This position was clarified long ago by a Full Bench of the Lahore High Court, and indeed that has been the practice of this Court ever since-see Gurdevi v. Mohd. Bakhsh 45 P.L.R. 85 = AIR 1943 Lah. 65 (F.B.). In any case, Article 227 of the Constitution confers ample power on this court to interfere even with interlocutory orders if interests of justice so demand.

I quite agree with the counsel for the respondents that on 16th February 1960 the trial Court felt that it had no power to issue any binding directions to the executing Court, which is a court of collateral jurisdiction, but at the same time, it is clear that the trial Court thought that in the interests of justice the attached house should not be sold pending the decision of the application filed by the plaintiff under Order 39, rules 1 and 2, and section 151, Civil Procedure Code. It is on this account that the Court directed Brij Lal decree holder not to pursue the execution of the decree till the decision of the plaintiff''s application. These directions in my opinion, have virtually the same practical effect as a temporary injunction would have, and if the execution of the decree was still proceeded with, the plaintiff could justifiably have a grievance. Now when the plaintiff filed an application on 2nd May 1969 bringing to the notice of the Court various facts giving rise to her grievance and when the Court thought that it was a fit case in which notice should be given to the opposite party to show cause against the prayers made in this application, the dictates of justice demanded that the impugned sale against which the plaintiff was seeking redress should either have been stayed or the hearing of the application should have been fixed before the fateful event. Shri Sethi has contended that it was not within the competence of the trial Court to pass an effective order of stay. This may be so. But then it was certainly open to the Court on the circumstances of the case as disclosed to immediately issue an injunction restraining the decree holder from proceeding further with the execution proceedings and definitely to refrain him to have the sale effected on 14th May 1960. Not to give this relief to the plaintiff, was in my view not only highly unjust, but it clearly amounted to material irregularity in the exercise of jurisdiction vested in the Court below. This order, in my opinion, is so grossly unjust that it might well be described to border on to perversity. The result of the order passed by the learned Subordinate judge was that the petition dated 2nd May 1960 as also the petition under Order 39, rules 1 and 2, Civil Procedure Code, would become wholly infructuous. I have, therefore, no hesitation in holding that the trial Court was wrong in fixing the next date of hearing on 17th May 1960 when it was clearly alleged that the sale had been fixed for 14th May 1960.

Shri Sethi has very strenously contended that these are the tactics of the judgment-debtor in defeating and delaying the decree-holder''s valid claim. In this connection, he has laid emphasis on the fact that both these two revisions (Civil Revisions 270 and 271 of 1960) arise out of two separate suits filed by Shrimati Malan Devi and her son Des Raj, who are both said to be nearly related to the judgment-debtor. Whether or not the suggestion thrown by Shri Sethi is justified, it is not possible for me at this stage of the proceedings and on the present record to say anything about the merits of the claims of these two persons. I am only concerned with the order passed by the learned Subordinate Judge on the application of the plaintiff dated 2nd May 1960. I quite see that the decree-holder has been delayed by more than a year on account of the present revision petition, but for this in my opinion the decree-holder has himself to blame. Had he conscientiously complied with the order of the Court below passed on 16th February 1960, it is highly likely that the trial of the suit would have by now concluded. By not doing so he has himself been instrumental in delaying satisfaction of his decree by more than a year.

But, be that as it may, I think now that the sale fixed for the 14th May, 1960 has been stayed by this Court, it is fit and desirable that the executing Court should not proceed to sell the attached house till after the disposal of the plaintiff''s application under Order 39, rules 1 and 2, Civil Procedure Code, and the application filed by the plaintiff on 2nd May, 1960 and I direct accordingly. The subsequent proceedings in execution would obviously depend on the result of the above applications filed by the plaintiff.

Before concluding, however, I think it is desirable to direct the trial Court to proceed with the trial of the suit with due despatch and promptitude; neither unnecessarily rushing through the case nor unduly delaying the hearing. The decree, I am told, was passed sometime in 1954. Seven years have elapsed and the decree-holder is nowhere near getting the fruits of his decree. At the same time, if some portions of the house actually belong to Shrimati Malan Devi or Das Raj, and if the decree cannot be executed against their shares, then it is only just and fair that their shares should be protected.

In view of the above discussion, I issue the directions mentioned above and direct the parties to appear in the trial Court on 23rd October 1961 when another short date would be given by the Court for the disposal of the applications mentioned above filed by the plaintiff. These applications must be disposed of within a period of three or four weeks from the 23rd of October 1961.

This revision is disposed of in the terms mentioned above. There will, however, be no order as to costs of this revision.