KALYAN SINGH Vs. STATE OF U P

JUDGEMENT

(1.) I had the advantage of reading the judgment of ray brother Jagdish Sahai and I agree with him that the question should be answered in the negative and that the petitioner should pay costs of the respondents. Order 45, Rule 13 (2) (d) does not apply; I have given my reasons for this view in State of Uttar Pradcsh v. Mukhtar Singh, (S) AIR 1957 AH 505 and have very little to add. The words "give such other direction" must be interpreted as analogous to placing any party seeking the assistance of the Court under conditions and Clause (d) comes into operation when a party seeks the assistance of the court and then either conditions may be imposed upon him or such other direction as appointment of a receiver may be given. The words "party seeking the assistance of the court" do not refer to the party to whom a certificate has been granted; granting the certificate is not granting him the assistance of the court. The clause comes into operation after a certificate has been granted and applies when after the grant of a certificate a party seeks the assistance of a court in one way or another. Here the petitioner sought the assistance of the court by seeking a certain interim relief and if the relief is granted to him, it may be granted on conditions or subject to a direction respecting the subject matter of the appeal. Whether the interim relief should be granted to him or not is an entirely different matter not dealt with by the clause. The only clause that might apply is Clause (c), but the interim relief that is sought is not covered by it.

(2.) The order under appeal to the Supreme Court is an order refusing to issue certiorari to quash certain notifications published under section 68-C of the Motor Vehicles Act and mandamus commanding the State and others not to interfere with the petitioner's right to ply his motor vehicle on a certain route. There arises absolutely no question of staying the execution of the order under appeal; an order refusing to issue certiorari or mandamus is not an order capable of execution. What the petitioner really requires is a positive relief and not a relief against the operation of the order appealed from. Order 45, R. 13, does not empower the court to grant such interim relief. I further agree with my learned brother that the subject matter of appeal is the refusal of this Court to grant certiorari or mandamus; no practical direction in respect of this retusal can be granted.

(3.) I also agree with my learned brother that Section 151 C.P.C. also is not applicable.