PATHUMMAL Vs. NARAYANAN

JUDGEMENT

(1.) The additional petitioner in D. R. O. P. No. 2 of 1966 in the Sub Court, Ernakulam, is the revision petitioner. That proceeding was one under S.11(2) and (3) of Act 31 of 1958 for the redemption of a mortgage on deposit of half the mortgage amount. The original mortgagor, who was the petitioner to start with in the D. R. O. P. deposited the mortgage amount and the additional petitioner (the revision petitioner before me) claims to be a comortgagor, having derived a fractional interest in the equity of redemption from one of the coheirs of the late Mahammad who was the mortgagor. After having obtained an order for redemption and deposited the amount prescribed under S.11, the petitioner took possession in execution of the decree passed by the Sub Court. In between, certain things happened which constitute the subject matter of the present controversy. The 1st respondent before me contended in the Sub Court that he was a varamdar (along with the 2nd respondent) under the mortgagor and that his possession could not therefore be displaced in execution of the redemption decree. The lower court decided against him on 22-11-1968 and eventually disposed of the entire D. R. O. P. on 18-12-1968. Thereupon, the 1st respondent (the alleged varamdar) filed a revision petition in this Court challenging the order holding against his varamdar status. In that revision petition (C. R. P No. 40 of 1969), he obtained an ex parte stay order on 9-1-1969. On the same day he apprised the executing Court (the local Sub Court) of the factum of stay by the High Court. Meanwhile, the extra diligent revision petitioner had taken out execution and the creditably I don't say suspiciously prompt delivery effected by the Amin of the Court was a little earlier to the communication of the order of the Sub Court recalling the warrant. For, when the Sub Court came to know that a stay had been ordered by the High Court, immediately an order was passed recalling the warrant, but by the time the Amin came to know about it he had already delivered possession of the property to the revision petitioner (and the 2nd respondent before me) and he reported that fact to the Court. Thereupon, the 1st respondent who, notwithstanding the stay order by this Court, was deprived of his possession in execution, moved the Sub Court for putting him back in possession in effectuation of the stay order and by undoing what had been wrongly done. The learned Subordinate Judge thereupon passed an order in the following terms:

(2.) He raised before me three points and argued them with ability. His first contention was that the mere fact that the High Court had granted a stay of execution did not deprive the executing Court of its jurisdiction to carry on the execution. Therefore, delivery proceedings in this case culminating in the actual giving of possession to the revision petitioner was perfectly valid. In support of this contention counsel relied upon a ruling reported in 1960 KLT 264 and another reported in AIR 1967 SC 1386 . There is no doubt that the legal position has been conclusively and clearly stated by the Supreme Court to that effect. Wanchoo J., as he then was, speaking for the Court, observed:

(3.) It must be remembered that admittedly the revision petitioner was put in possession only after the stay order was passed by the High Court, and indeed, after it was communicated to the Sub Court. Once it is communicated to the Sub Court it operates and delivery effected by its officer subsequent thereto is illegal, according to the respondent; while the petitioner suggests that if the Amin delivers in ignorance of the stay, it is still good. At any rate, if delivery of possession is effected after the order of stay has been passed but before it is communicated to the Court, there is jurisdiction for the executing Court to set aside what it had done, not because the order of delivery is without jurisdiction indeed, it is with jurisdiction, as the Supreme Court has explained - but because to meet the ends of justice such a step is often necessary. This facet of the question is also dealt with by the Supreme Court in the aforesaid decision and it has been held that the Court is not helpless in setting right the mistake committed in ignorance of the order of stay. The true legal position has been explained authoritatively by the Supreme Court, in the aforesaid decision, as follows: