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HIGH COURT OF CALCUTTA
GUHA, J.
Bhupendra Nath Lahiri - Appellant
Versus
Prabhat Kumar Biswas - Respondent
Decided on : Feb 11, 1959
STAY OF EXECUTION - CIVIL PROCEDURE CODE, 1908 - SECTION 148 - ORDER FOR STAY OF EXECUTION CONDITIONALLY GRANTED - BREACH OF CONDITION - POWER OF COURT TO GRANT RELIEF - EQUITABLE CONSIDERATIONS.
Fact of the Case:
The defendant-appellant filed a second appeal against a decree for ejectment obtained by the plaintiff-respondent. During the pendency of the appeal, the plaintiff-respondent started execution proceedings. The defendant-appellant obtained a stay of execution from the High Court on certain conditions, including the deposit of rent for the premises in question. The defendant-appellant failed to deposit the rent for certain months due to the negligence of his lawyer.
Finding of the Court:
The High Court held that the defendant-appellant was not to blame for the breach of the conditions of the stay order and that equitable considerations were in his favor. The court also held that it had the power to grant relief to the defendant-appellant under section 148 of the Civil Procedure Code, 1908, even though the stay order was passed upon consent of the parties.
Issues: 1. Whether the High Court had the power to grant relief to the defendant-appellant after the breach of the conditions of the stay order. 2. Whether equitable considerations were in favor of the defendant-appellant.
Ratio Decidendi: 1. The High Court held that it had the power to grant relief to the defendant-appellant under section 148 of the Civil Procedure Code, 1908, even though the stay order was passed upon consent of the parties. The court relied on the fact that the defendant-appellant was not to blame for the breach of the conditions of the stay order and that equitable considerations were in his favor. 2. The court also held that the present application filed by the defendant-appellant could be treated as a fresh application, and there was no statutory bar to the entertainment of an application like this and granting adequate relief thereunder.
Final Decision: The High Court passed a fresh order staying the execution of the decree for ten days, subject to the defendant-appellant depositing the rent for the months in question. The court also directed the defendant-appellant to continue depositing the rent from month to month till the disposal of the second appeal. The court further directed that the security deposit executed by the defendant-appellant would continue in force during the pendency of the second appeal.
1. THIS is an application for stay of all further proceedings in Title Execution case No. 177 of 1955 of the Court of the Second Munsif. Alipore. The defendant appellant is the petitioner before me. Against him a decree for ejectment from certain premises was obtained by the plaintiff respondent opposite party. Thereupon the defendant preferred a second anneal to this court which is numbered as S. A 1388 of 1955. In the meantime, the plaintiff respondent started an execution case in Title Execution Case No 177of 1955 in the Court of the Second Additional Munsif at Alipore for enforcement of the decree for ejectment. The defendant petitioner applied to this Court for stay of execution of that decree and for stay of all further proceedings in the said execution case and obtained a Rule from this Court namely Civil Rule No. 2730 (s) 55 On 8-12-55, by consent of parties that Rule was made absolute by Lahiri, J on certain terms. Some of the said terms are reproduced below:-
"(b) If within that period the petitioner deposits in the Trial Court a sum of Rs. 1000/- (Rupees one thousand only) to the credit of the decree holder opposite party, the execution will remain stayed during the pendency of the second Appeal. (c) Without prejudice to his rights and contentions in the appeal the petitioner will go on depositing Rs 100/- (Rupees one hundred only) from month to month within the 15th day of the following month till the disposal of the second appeal pending in this Court. (e) On breach of any of the conditions this Rule will stand discharged with costs. . . . . . . . "
2. IT appears that in terms of the above order the defendant petitioner deposited a sum of Rs. 1100/- in the trial Court including initial deposit of Rs. 1000/- as well as Rs. 100/- towards rent for the month of December, 1955 This deposit was made through his pleader Sri Sachindra Nath Roy. It was detected latter on that deposits of rent for the months of October and November, 1957 as well as for the months of April, July and September, 1958 were not made. The explanation given by the petitioner in regard to this matter is that the requisite sums of money were made over by him to the lawyer concerned in strict compliance with the order of this Court but the latter somehow did not make the necessary deposits in court and in support of this case a verified petition filed by the lawyer concerned in the lower Court is relied upon. The relevant portion of that verified petition is as follows:-
"that the judgment-debtor did give to me Rs. 100/- in each of the months of October and November, 1957 and. April, July and September, 1958 with strict instructions to deposit the same in your honors Court before the 15th of each month, but unfortunately I failed to deposit the same in Court. I, therefore, pray 'that the judgment-debtor may not be penalised for my laches and negligence."
It was argued on behalf of the defendant petitioner that so far as he is concerned, he was not to blame in any way and it was the lawyer concerned who after all is an officer of the Court who was directly responsible for breach of the conditions which had been imposed by this Court in its order dated the 8-12-55 at the time when execution was stayed conditionally.
3. THE parties have filed before me elaborate affidavits and counter affidavits and I have also heard the learned lawyers at some length. So far as the facts go, I am inclined to accept the position that the lawyer concerned was really responsible for non-deposit of the rents for the months of October and November, 1957 and April. July and September, 1958. I accept further the position that so far as the defendant petitioner is concerned, he had acted in a bona fide manner and that it was really his lawyer who was responsible for failure to deposit the rents for certain months.
4. THE next question that falls for decision is whether in the circumstances as set forth above, this court has any power to grant any relief to the defendant p
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