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PATNA HIGH COURT
Ahmad and Misra JJ.
Bankim Chandra
Versus
Chandi Prasad
Appeal From Original Order No. 303 of 1955 ;
Decided On : APRIL 30, 1956
EXECUTION OF DECREE - STAY OF SALE - REVIVAL OF STAY ORDER ON RESTORATION OF APPEAL - SALE HELD DURING STAY PERIOD - VOID - MISTAKE IN ORDER - ORDER TO BE READ IN CORRECTED FORM.
Fact of the Case:
Judgment debtors appealed against a decree obtained by the decree-holder. During the pendency of the appeal, the decree-holder executed the decree and attached a property. The judgment debtors obtained a stay of the execution proceeding from the High Court. The appeal was later dismissed for non-compliance with a peremptory order. The judgment debtors filed an application for restoration of the appeal, which was allowed by the High Court. The decree-holder revived the execution case and put the property on sale. The judgment debtors filed a petition in the executing Court stating that the stay order had revived on the restoration of the appeal and the sale should not proceed. The executing Court refused to stay the sale. The judgment debtors filed an appeal against the order of the executing Court.
Finding of the Court:
The High Court held that the stay order passed on the restoration of the appeal revived the earlier stay order and the sale held during the stay period was void. The Court also held that the mistake in the order of the Registrar, which referred only to the stay of delivery of possession instead of the stay of sale, was due to the mistake of the Court itself and the order had to be read in its corrected form.
Issues: 1. Whether the stay order passed on the restoration of the appeal revived the earlier stay order? 2. Whether the sale held during the stay period was void? 3. Whether the mistake in the order of the Registrar, which referred only to the stay of delivery of possession instead of the stay of sale, was due to the mistake of the Court itself?
Ratio Decidendi: 1. The Court held that the stay order passed on the restoration of the appeal revived the earlier stay order, relying on the principles laid down in various case laws. The Court distinguished the case laws relied upon by the respondent, which related to the effectiveness of the order of attachment before judgment passed in a suit where the suit itself has been dismissed and is decreed thereafter in appeal only. 2. The Court held that the sale held during the stay period was void, as the executing Court had no jurisdiction to hold the sale in the face of the stay order. 3. The Court held that the mistake in the order of the Registrar, which referred only to the stay of delivery of possession instead of the stay of sale, was due to the mistake of the Court itself. The Court relied on the well-established rule of law that the order which operates is one which the Court decides to pass and not one which is clearly proved to have been dictated as a result of some mistake.
Final Decision: The appeal was allowed and the sale held during the stay period was set aside.
Ahmad, J.
1. This appeal by the judgment debtors is directed against the order dated 1-9-1955, passed by the executing Court refusing to accept the contention raised by the judgment debtors that the sale held in the proceeding on 16-8-1955, is void and as such should be annulled.
2. The facts leading to this appeal are as follows: The plaintiffs respondents obtained a decree for Rs. 16,320.00 against the appellants on the basis of a handnote. Against that decree an appeal, was filed by them on 6-4-1953, which was registered in this Court as First Appeal No. 123 of 1953. In the meantime the plaintiff decree-holder put the decree under execution in Execution Case No. 24 of 1953, & the prayer made in that execution proceeding was for the attachment and sale of a two storied building bearing Municipal Holding No. 551 in Ward No. 2 situated in Mohalla Pathar Chapati Bazar Madhopur in Madhopur Municipality within the district of Santal parganas. Thereupon on 28-7-1953, an application for stay of the execution proceeding was made in this Court on behalf of the judgment debtors. The learned. Registrar on hearing the parties made the following final order on 5-10-1953: Heard learned Advocate:
The order of ad interim stay is made absolute on appellants furnishing security to the satisfaction of the Court below within three months from the date of this order, failing which this order of stay shall stand automatically vacated and the petition rejected".
It is not denied that the appellants in compliance with this order furnished security to the satisfaction of the Court below. Therefore in view of the order passed on 5-10-1953, the execution proceeding had to remain stayed. Unfortunately thereafter on 22-11-1954, First Appeal No. 128 of 1953 stood dismissed for non-compliance of a peremptory order for the payment of Rs. 124/1/- as printing cost. This, therefore, led to an application for restoration of the appeal by the appellants and this Court on hearing the parties restored the same by its order dated 11-5-1955. That order read as follows:
"Having perused the affidavit filed on behalf of the petitioners and also the counter-affidavit on behalf of the respondent, and having heard counsel for both the parties, we are satisfied that this application should be allowed and the order of dismissal of the first appeal should be set aside and First Appeal No. 128 of 1953 should be restored to file. This order is subject to the condition that the petitioners pay a sum of Rs. 64/- as costs to Mr. Jamuna Pd. Chaudhary, within three days from this date. We grant the appellants one weeks time to file the printing cost of Rs. 124/1/- otherwise First Appeal No. 128 of 1953 will stand dismissed without. further reference to a Bench".
The appellants in pursuance of this order deposited the printing cost as directed on 13-5-1955.
3 In the meantime it appears that on the dismissal of the First Appeal No. 128 of 1953 on 22-11-1954, the decree-holder respondent revived the execution case which as a result of the order passed on 5-10-1953, was stayed and in the course of that the property was put on sale. In those circumstances on 2-8-1955, the appellants put in a petition before the executing Court submitting therein that in view of the restoration of First Appeal No. 128 of 1953 on 11-5-1955, all the ancillary orders passed therein including the one made on 5-10-1953, for the stay of execution had revived and, therefore, the Court should not allow the execution proceeding or sale to proceed any further. The learned Subordinate Judge on hearing the parties in regard to it, however, passed the following operative order on 2-8-1955.
"The sale will remain on hammer up till 16-8-1955. In the meanwhile the J. Dr. may produce the stay order, if any".
In pursuance of this order, one of the appellants Srimati Mayabati Devi moved an application in the High Court on 4-8-1955, praying that "the order dated 5-10-1953 be restored or fresh stay be granted. This a
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