KUTTI AMMA Vs. KURUVILLA

JUDGEMENT

(1.) The 2nd defendant is the appellant. The plaintiff in the case had obtained an ex parte decree against the 2nd defendant. She had filed a petition to set aside the ex parte decree. That was dismissed. Against that C.M.A. 34 of 1950 was filed before the District Court, Mavelikara. An application for stay of execution was also filed on 2.3.1950. The District Court allowed interim stay and communicated the same to the Munsiff, Thiruvella, by a phonocom. In Thiruvella, the case had been posted on 3.3.1950 for effecting delivery of possession. On receipt of the phonocom the Munsiff adjourned delivery to the next day. Since he did not receive any letter confirming the message, delivery as effected on 4.3.1950. On 8.3.1950 the 2nd defendant applied for re-delivery was the delivery effected by the Munsiff was against the stay allowed by the District Court. This petition was dismissed by the Munsiff and by the District Judge in appeal. So the 2nd defendant has come up in second appeal impeaching the decisions of the courts below.

(2.) It is not disputed that the delivery of possession was effected on 4.3.1950 by the Munsiff while the stay order issued by the District Court was in force. Being so, it was irregular if not illegal on the part of the Munsiff to effect delivery of possession. The stay order had been communicated by phonocom on 2.3.1950. It was seen that the plaintiff in the case had appeared in the District Court, Mavelikkara on 3.3.1950 and filed a petition for an early disposal of the stay application. Thus the Munsiff who was to order delivery and the plaintiff who was to take delivery of possession were aware of the stay order issued by the District Court. The District Judge seemed to think that there was no proper communication of stay till 4.3.1950 and so the delivery effected should be taken to be legal. He is of opinion that the communication by phonocom cannot be considered as proper communication of the stay order. But he does not consider why he was responsible for sending an improper communication of his stay order if the communication by phonocom was not proper. His office also seems to have been quiet negligent in this respect in not sending a communication confirming the phonocom. The confirmation seems to have been received by the Munsiff only on 6.3.1950. The distance from Mavelikara to Thiruvella is below ten miles and if an order of stay passed on the second day of March takes five days to reach the Munsiffs Court, it cannot but be observed that the business in the District Court is being hopelessly managed. It is enough if the execution Court is informed by a proper submission that the appellate Court had ordered stay and if that was done it is the duty of the execution Court to stay further proceedings. The orders therefore passed by both the courts below are set aside. The District Munsiff will forth with order re-delivery of possession to the 2nd defendant.

(3.) The sugar cane had been cultivated in the property at the time of delivery of possession. Though it was ripe for collection it was stated that because of the stay order issued from this Court the sugar cane had not been cut and removed. Though the sugar canes were planted by the defendants and taken care of by them for a time the plaintiff must be deemed to have attended to it after he got delivery of possession on 4.3.1950. He too must have spent some money for the purpose. Though we have ordered re-delivery of possession the lower court will see that the sugar canes are cut and sold and the whole proceeds brought before the Court by resorting to proper and legal means. The execution court will then determine the relative rights of the parties to the crop and the proceeds, and disburse the amount. Since these proceedings arose out of the indifference of the courts below, we direct the parties to suffer their costs throughout.