LALA THAKUR Vs. HAZARI THAKUR

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India arises out of an order passed by a bench of Sartha (Chandi) Gram Cutchery dated 1-9-1965 convicting and sentencing the petitioner under Sections 426 and 334 of the Indian Penal Code and an order dated 3-11-1965 passed by the full bench of the Gram Cutchery on appeal against the above order. It appears that the present opposite party No. 1, Hazari Thakur, was the complainant in the aforesaid criminal case and the petitioner was sentenced by a bench of the Gram Cutchery to pay a fine of Rs. 25/- under each of the aforesaid Section s and, in default, to undergo rigorous imprisonment for 15 days on each count. The full bench which heard the appeal preferred before it. by the present petitioner upheld the conviction and passed an order sentencing the petitioner to pay a fine of Rs. 25/- on each count and, in default, to undergo imprisonment for 7 days on each count. The order of the full bench, is, however, silent as to whether the imprisonment is to be simple or rigorous; as such, it is presumed to be simple imprisonment.

(2.) The appeal before the full bench of the Gram Cutchery was preferred by the petitioner on 17-9-1965. Thereafter, the petitioner filed a petition before the Subdivisional Magistrate, Bihar, on 14-10-1965 under Section 73 of the Panchayat Raj Act in which he made a prayer for setting aside his convictions and sentences under Sections 426 and 334 of the Indian Penal Code as per order of the Gram Cutchery dated 1-9-1965. The order sheet of the Subdivisional Magistrate shows that this petition which was numbered as 61 G.P. of 1965 was admitted on the same day and an order was passed calling for a report from the Sarpanch and also the records of the case and staying further proceedings. Subsequently, as per order passed on 5-4-1966, the Subdivisional Magistrate rejected this petition.

(3.) The first point that was raised before me was that the order of the full bench of the Gram Cutchery dated 3-11-1965 is altogether illegal in view of the fact that further proceedings had been stayed, as per order of the Subdivisional Magistrate dated 14-10-1965 in Case No. 61 G.P. of 1965. On a perusal of the order sheet of the full bench, it transpires that after the filing of the appeal before the full bench on 17-9-1965, there were some adjournments on various grounds and as per order passed on 3-10-1965, when both the parties (the present petitioner as well as opposite party No. 1) were present, the appeal was adjourned to 17-10-1965 for hearing as the Panches and the witnesses had not turned up. On the next two dates, that is, 17-10-1965 and 28-10-1965, the appellant, that is the present petitioner, did not turn up, although the respondent, that is, the present opposite party, had turned up on both the dates and as per order dated 28-10-1965, the appeal was again adjourned to 3-11-1965 for hearing. On this date, the respondent (present opposite party No. 1) as well as the Panches had turned up, but the appellant, that is the present petitioner, did not turn up and thereon the case was heard by the full bench ex parte and, as already mentioned, the convictions under Sections 426 and 334 of the Indian Penal Code were upheld and only some alteration was made in the sentence of imprisonment on default of the payment of the fines. There is nothing in the order sheet of the full bench to show that any intimation regarding the order of the Subdivisional Magistrate dated 14-10-1965 was received by the full bench prior to 3-11-1965 when the appeal was disposed of by this bench, As would appear from the order sheet, referred to above, the petitioner at whose instance the stay order had been passed did not care to turn up before the full bench on any of the dates subsequent to the passing of the stay order of 14-10-1965, namely, on 17-10-1965, 28-10-1965 and 3-11-1965 and it was conceded by the learned advocate for the petitioner that no intimation of the stay order had been communicated to the full bench by the petitioner himself after the passing of the stay order and before the appeal was heard and decided by the full bench. His contention, however, was that the order of the Subdivisional Magistrate being an order staying further proceedings in a pending case, the order came into effect as soon as the same was passed irrespective of the date when the full bench received intimation of that order and, as such, all the proceedings of the full bench subsequent to the passing of the stay order of 14-10-1965 were without jurisdiction and void. In support of this contention, reliance was placed on the Special Bench decision of this Court in Liakat Mian v. Padampal Singhania A.I.R. 1951 Pat. 130. It appears however that there were conflicting views of different High Courts on this point and this has now been set at rest by the decision of the Supreme Court in Mulraj v. Murli Raghunathji Maharaj C.A. No. 1938 of 1966 dated 2nd March 1967. This appeal arose in connection with a stay order whereby the execution proceedings in the original court had been stayed. After referring to the various decisions of the different High Courts including that of our High Court in the aforesaid case (Liakat Mian v. Padampat Singhania) A.I.R. 1951 Pat. 130, the Court held as follows: But a mere order of stay of execution does not take away the jurisdiction of the Court. All that it does is to prohibit the court from proceedings with the execution further, and the court unless it knows of the order cannot be expected to carry it out. Therefore, till the order comes to the knowledge of the court its jurisdiction to carry on execution is not affected by a stay order which must in the very nature of things be treated to be a prohibitory order directing the executing court which continues to have jurisdiction to stay it and till further orders. It is clear that as soon as a stay order is withdrawn, the executing court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been withdrawn. The jurisdiction of the court is there all along. The only effect of the stay order is to prohibit the executing court from proceeding further and that can only take effect when the executing court has knowledge of the order. The executing court may have knowledge of the order on the order being communicated to it by the court passing the stay order or the executing court may be informed of the order by one party or the other with an affidavit in support of the information or in any other way. As soon therefore as the executing Court has come to know of the order either by communication from the court passing the stay order or by an affidavit from one party or the other or in any other way the executing court cannot proceed further and if it does so it acts illegally. There can be no doubt that no action for contempt can be taken against an executing court, if it carries on execution' in ignorance of the order of stay and this shows the necessity of the knowledge of the executing court before its jurisdiction can be affected by the order. In effect, therefore, a stay order is more or less in the same position as an order of injunction with the difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further it is equally well settled that the injunction order not being addressed to the court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an order of injunction to a party and an order of stay to a court. In both cases knowledge of the party concerned or of the court is necessary before the prohibition takes effect. It is apparent that in view of this decision of the Supreme Court, the stay order as passed by the Subdivisional Magistrate on 14-10-1965 could not operate to invalidate any of the orders as passed by the full bench before the intimation of the order was received by the full bench, either as a result of communication sent to it from the court of the Sub-divisional Magistrate or from any other source. Hence, as in the present case, there is nothing to show that any intimation of this order was received by the full bench prior to the disposal of the appeal by its order dated 3-11-1965, the contention about the order dated 3-11-1965 as passed by the full bench and all other orders passed by it after 14-10-1965 being illegal, without jurisdiction and void, cannot be accepted.