The High Court does not have the inherent power to stay execution of the decree after refusal of leave to appeal to Supreme Court unless the case is covered by the provisions of Order XLV, Rule 13.

Judgement

MOHAPATRA, J. :- This application for leave to appeal to Supreme Court has been filed by defendant No. 1 against the confirming judgment and decree dated 7-11-1949 of Sri P.C. Dey, Subordinate Judge of Sambalpur. The suit is for recovery of possession of sir lands attached to the Thikadari tenure of which defendant No. 3 was the ex-Thikadar and defendant No. 2 Lal Sadananda Singh is the Zamindar. Plaintiff No. 1 is the son of ex-Thikadar Raghu Baritia (defendant No. 3) and plaintiff No. 2 is the uncle of plaintiff No. 1 belonging to the junior branch of the family which had a common ancestor.

The Zamindar (defendant No. 2) filed O.S. No. 16/33 in the Munsifs Court against defendant No. 3 alone for realisation of arrears of rent of Rs. 375/- and odd and for ejectment of defendant No. 3. The suit was decreed on 5-6-33. Defendant No. 3 was directed to pay up the decretal dues within three months, failing which he was to be evicted. The present defendant No. 2 having taken delivery of possession of the suit lands in execution of that decree, and defendant No. 1, the appellant, having taken lease of these lands from defendant No. 2 and having entered upon the disputed lands, the present suit was brought mainly on the allegation that the previous decree was a personal decree against defendant No. 3 and the plaintiffs not having been represented in the previous decree, their interest in the suit lands, which are ancestral properties, is not affected. The plaintiffs, therefore, prayed for recovery of possession of the suit lands. The plaintiffs further contention was that the Thikadar was not liable to be ejected solely on the ground of non-payment of rent.

2. The trial Court granted relief in favour of the plaintiffs mainly on the ground that the previous decree was merely a personal decree against the ex-Thikadar (defendant No. 3) and it did not bind the interest of the present plaintiffs. It was found that the Thikadari interest along with the disputed sir lands were the ancestral properties of the parties. In appeal, the High Court confirmed the finding of the trial Court that the previous decree against defendant No. 3 was a mere personal decree and further that the properties in dispute are the ancestral properties and, as such, the interests of the plaintiffs were not affected by the previous decree.

3. It is not disputed before us that the previous decree was a personal decree wherein the present plaintiffs were not represented at all. Furthermore, it is not disputed that the properties along with the Thikadari interest are the ancestral properties of the parties. This being the position, the case is fully covered by the decision of this Court in the case of - "Tirtha Naik v. Sadananda, AIR 1952 Orissa 99 (A).

Some of the principles laid down in that case, after a review of the entire case law on the subject are that the Thikadari leases, either permanent or temporary but renewed or renewable from time to time, are, like any other property, capable of being possessed by a coparcenary; and that the joint family estate in such (Thikadary) leases can grow either if they are acquired with the Joint family funds, or with joint family labour or is allowed to be treated as joint family property by the acquirer. When the manifest position in the case is that the disputed properties are ancestral and the other members of the family had interest, the same cannot be extinguished by execution of a mere personal decree against the ex-Thikadar. We are, therefore, of the opinion that it is not a fit case where leave can be granted nor is it a case where any substantial question of law is involved.

4. Mr. B.N. Das, appearing for the appellant, contends, relying upon the affidavit filed on behalf of the appellant, that the suit properties will be valued at more than ten thousand rupees. Even if the valuation of the properties be more than ten thousand rupees, leave cannot be granted unless there is any substantial question of law involved,