SHAUKAT HUSSAIN ALIAS ALI AKRAM Vs. BHUNESHWARI DEVI

JUDGEMENT

(1.) This is an appeal by special leave. The respondent Bhuneshwari Devi obtained a money decree against the appellants in S. C. C. Suit No. 107/95 of 1939 in the Court of the Subordinate Judge, Gaya exercising Small Cause Court jurisdiction. At the instance of the decree-holder the decree was transferred for execution to the Court of Munsif 1st at Gaya as the decree-holder wanted to proceed against the immovable property of the judgment-debtors. The judgment-debtors filed Title Suit No. 104/67 in the Court of Munsif 1st at Gaya for setting aside the decree passed by the Small Cause Court on the ground that it was fraudulent, illegal and without jurisdiction. After filing the suit the appellants filed two applications in the Court of the Munsif - one for an injunction against the respondent restraining her from proceeding with execution and the other for staying the further proceedings in the execution case under O. XXI Rule 29, C. P. C. Two ex parte orders were passed on the same day namely May 11, 1962. Since the appellants did not file any requisite for issue of show cause notice to the respondent, the injunction was recalled on June 2, 1962. The respondent decree-holder who was not aware that there were two ex parte orders informed the executing Court on April 10, 1963 that the order of stay passed in Title Suit No. 104/1962 had been recalled for non-filing of the requisite and prayed for proceeding with the execution. The executing Court thereupon passed an order on the same day i. e. April 10, 1963 vacating the order of stay and calling upon the respondent decree-holder to take further steps. In due course the property in dispute was attached and sale proclamation was issued. It does not appear that the appellant judgment-debtor took any objection either to the attachment or to the sale proclamation though notices were issued and served on them. The appellants, however, filed an objection in the Court of the Munsif in the pending Title Suit requesting the Court to clarify whether the order of stay made by it on May 11, 1962 was still subsisting or not. That Court by its order dated July 26, 1963 remarked that the proceedings in the execution case had been stayed on May 11, 1962 and since the same had not been withdrawn it was still subsisting. The Court, however, modified the ex parte stay order of May 11, 1962 calling upon the judgment-debtors to deposit security to the extent of Rs. 550/- in the execution case which was a condition precedent to the stay. The executing Court was informed about this order and in due course the executing Court fixed 5th August, 1963 for furnishing security. The security was not furnished and since the stay did not continue after 5th August, 1963 the attached property was sold on 6th August, 1963 under the proclamation which had already been issued and was purchased by the decree-holder-respondent with the permission of the Court.

(2.) On August 26, 1963 one of the appellant judgment-debtors filed an objection under Section 47 of the Code of Civil Procedure for setting aside the sale. The learned Munsiff set aside the sale holding that the sale was illegal-the burden being that the proclamation of sale had been issued when the stay of execution was still in existence. In appeal filed by the decree-holder to the learned Subordinate Judge, the view of the Munsif was upheld, and the appeal was dismissed. The decree-holder respondent went in second appeal to the High Court. The High Court held that the Court of the Munsif was incompetent to stay execution of the decree and, therefore, the order of stay was without jurisdiction and hence null and void. Therefore, the proceedings in execution by way of attachment and proclamation of sale were quite legal and the sale in favour of the decree-holder was also legal. The learned Judge further pointed out that even assuming that the execution had proceeded during a valid stay, that stay by virtue of the order of security passed by the Court, had come to end on August 5, 1963 and, therefore, the sale which took place on August 6, 1963 was valid.

(3.) It is from this order that the judgment-debtors have come to this Court by special leave.