MANJURANI DAS Vs. BIBHUTI BHUSAN PARAMANICK

JUDGEMENT

(1.) This Rule arises out of an appeal preferred against money decree passed in a suit for specific performance with alternative prayer for recovery of earnest money. The Petitioner's husband entered into a contract for sale of some of his immovable properties to the Respondent opposite party, but on the allegation that there was failure, on his part to perform the contract a suit was filed by the present, Respondent opposite party for specific performance of the contract with alternative prayer for recovery of the entire earnest money which, according to them, was Rs. 16,000. The trial Court granted the alternative relief and passed a decree for the amount claimed with costs. But the present Petitioner has preferred an appeal against this decree in this Court which is now pending.

(2.) The Respondent, in the meantime, has started execution of the case and attached some other immovable properties belonging to the present Petitioner who is the widow of the deceased Defendant in the suit for specific performance. Thereafter, these properties were put up to sale, but before the sale was held, the Petitioner obtained the present Rule and also an interim order staying all further proceedings in the execution case. The order passed by this Court in this Rule was duly communicated by the learned Advocate Mr. Halder, which as appears was produced before the executing Court with a petition, inter alia, for adjourning the sale. From the record of the trial Court, it appears that time was allowed till December 18, 1971, for producing the certified copy of the said order as passed by this Court and sale was stayed till that date. Then, on December 18, 1971, the present Petitioner made another application asking for two months' time to bring the stay order after it is made absolute by this Court. This application was, however, put up on December 20, 1971, for hearing, but as none appeared to move the petition it was rejected. The sale was ultimately held on December 22, 1971. The Rule and the interim order passed by this Court, however, reached the executing Court as it appears from its order dated January 24, 1972, sometime in the month of January and by order dated January 24, 1972, the confirmation of sale was stayed till further intimation from this Court.

(3.) When this Rule came up earlier for hearing we directed the learned trial Court to submit a report and send the original records of the execution case. It appears from the report that the facts indicated above have, not been denied but some explanation has been given by the executing Court stating that time was allowed on the judgment -debtor's prayer, but as she could not produce the certified copy of the interim order, the sale was ultimately held on December 22, 1971 and it is further submitted that the allegations made were 'totally baseless'. In our opinion, the entire procedure adopted by the trial Court was without jurisdiction and the sale was held in violation of the interim order passed by this Court staying all further proceedings. The learned trial Court should have by this time known the well -established principle of law regarding the communication of the interim order made by this Court to the Court below. An Advocate's letter communicating such interim order was sufficient for enabling the Court to stay further proceedings in the trial Court awaiting direct communication of the interim order from this Court or until further order that may be passed by this Court. As long back as 1912, in similar circumstances, by means of an Advocate's letter the order of this Court was communicated. Mookerjee J. in considering the effect of such a letter in a Bench decision of this Court in Sati Nath Sikdar v/s. Ratanmani Naskar, (1911) 15 C.L.J. 335 observed as follows: