MULRAJ Vs. MURTI RAGHONATHJI MAHARAJ

JUDGEMENT

(1.) THIS is an appeal by special leave against the judgment of the High Court of Allahabad. Brief facts necessary for present purposes are these. The respondent filed a suit against the appellant for eviction from a shop which the appellant had taken on monthly rent from the respondent. The suit was filed after permission had been obtained under the U. P. (Temporary) Control of Rent and Eviction Act, No. III of 1947, (hereinafter referred to as the Act), in the court of the Munsif in Jhansi. It was contested by the appellant and one of the points raised before the trial court was that as the permission to sue had been granted at a time when there was a stay order, the Magistrate granting the permission had no jurisdiction to do so and therefore the permission was a nullity. On that basis it was contended that the suit should fail for no suit could continue under the Act without such permission.

(2.) THE Munsif dismissed the suit. The respondent then went in appeal. The appeal court upheld the order of the Munsif taking the view that the permission granted after the stay order had been passed was a nullity. The respondent then came in second appeal to the High Court, and the only point considered there was whether the permission granted by the Magistrate was a nullity of not. It may be mentioned that though the stay order had been passed on September 29, 1961 by the District Magistrate, the Magistrate who was dealing with the matter of permission, had no knowledge of it when he granted the permission on October 4, 1961. The question that arose before the High Court therefore was whether the permission granted in these circumstances could be said to be a nullity. The High Court held that the stay order could not and did not take away the jurisdiction of the Magistrate from the moment it was passed and that as the Magistrate had no knowledge of or information about the stay order when he granted the permission on October 4, 1961, that permission was with jurisdiction and the suit would therefore be maintainable. As no other point was apparently in dispute in the High Court it allowed the appeal and granted a decree for ejectment and rent in favour of the respondent. The appellant then obtained special leave from this Court, as there is some conflict of opinion between the High Courts on this question.

(3.) THERE has been difference of opinion among the High Courts on the question of the effect of a stay order, particularly with reference to execution proceedings. The High Courts of Calcutta, Patna and Punjab have held that in such a case the stay order takes effect from the moment it is passed and the fact that the court executing the decree has no knowledge of it makes no difference and all proceedings taken in execution after the stay order has been passed are without jurisdiction. On the other hand, the High Courts of Madras and Kerala have taken the view that the executing court does not lose its jurisdiction from the moment the stay order is passed and that the order being in the nature of a prohibitory order the court carrying on execution does not lose its jurisdiction to do so till the order comes to its knowledge and that proceedings taken in between are not a nullity. The Allahabad High Court seems to have taken an intermediate view and has held that where rights of third parties like a stranger auction -purchaser have intervened the fact that the executing court had no knowledge would protect third parties.