BANKIM CHANDRA Vs. CHANDI PRASAD

JUDGEMENT

(1.) This appeal by the judgment debtors is directed against the order dated 1-9-1955, passed by the executing Court refusing to accept the contention raised by the judgment debtors that the sale held in the proceeding on 16-8-1955, is void and as such should be annulled.

(2.) The facts leading to this appeal are as follows: The plaintiffs respondents obtained a decree for Rs. 16,320/- against the appellants on the basis of a handnote. Against that decree an appeal, was filed by them on 6-4-1953, which was registered in this Court as First Appeal No. 123 of 1953. In the meantime the plaintiff decree-holder put the decree under execution in Execution Case No. 24 of 1953, & the prayer made in that execution proceeding was for the attachment and sale of a two storied building bearing Municipal Holding No. 551 in Ward No. 2 situated in Mohalla Pathar Chapati Bazar Madhopur in Madhopur Municipality within the district of Santal parganas. Thereupon on 28-7-1953, an application for stay of the execution proceeding was made in this Court on behalf of the judgment debtors. The learned. Registrar on hearing the parties made the following final order on 5-10-1953: Heard learned Advocate: The order of ad interim stay is made absolute on appellant's furnishing security to the satisfaction of the Court below within three months from the date of this order, failing which this order of stay shall stand automatically vacated and the petition rejected". It is not denied that the appellants in compliance with this order furnished security to the satisfaction of the Court below. Therefore in view of the order passed on 5-10-1953, the execution proceeding had to remain stayed. Unfortunately thereafter on 22-11-1954, First Appeal No. 128 of 1953 stood dismissed for non-compliance of a peremptory order for the payment of Rs. 124/1/- as printing cost. This, therefore, led to an application for restoration of the appeal by the appellants and this Court on hearing the parties restored the same by its order dated 11-5-1955. That order read as follows:

(3.) In the meantime it appears that on the dismissal of the First Appeal No. 128 of 1953 on 22-11-1954, the decree-holder respondent revived the execution case which as a result of the order passed on 5-10-1953, was stayed and in the course of that the property was put on sale. In those circumstances on 2-8-1955, the appellants put in a petition before the executing Court submitting therein that in view of the restoration of First Appeal No. 128 of 1953 on 11-5-1955, all the ancillary orders passed therein including the one made on 5-10-1953, for the stay of execution had revived and, therefore, the Court should not allow the execution proceeding or sale to proceed any further. The learned Subordinate Judge on hearing the parties in regard to it, however, passed the following operative order on 2-8-1955. "The sale will remain on hammer up till 16-8-1955. In the meanwhile the J. Dr. may produce the stay order, if any". In pursuance of this order, one of the appellants Srimati Mayabati Devi moved an application in the High Court on 4-8-1955, praying that "the order dated 5-10-1953 be restored or fresh stay be granted. This application appears to have been heard on 11-8-1955, and on this date the learned Registrar passed the following order on that application. "Heard learned advocate. Pending the final hearing of this application let there be an order of ad interim stay so far as delivery of possession proceeding in the Court below is concerned". It is obvious that this order referred to the stay of delivery of possession though in fact the prayer made in the application dated 4-8-1955, filed by the petitioner in First. Appeal No. 128 of 1953 was not for the stay of delivery of possession but for the stay of sale. The mistake perhaps arose due to certain confusion made in the course of the hearing of the application. The result was that when this order was brought to the notice of the executing Court on 12-8-1955, it referred the matter back to the High Court for further clarification by its order of that date which read as follows: