LAWS(PVC)-1911-3-6

SRINIBASH PRASAD SINGH Vs. KESHO PRASAD SINGH

Decided On March 02, 1911
SRINIBASH PRASAD SINGH Appellant
V/S
KESHO PRASAD SINGH Respondents

JUDGEMENT

(1.) This Rule was granted upon an application under Order XLI, Rule 5, of the Civil Procedure Code of 1908 for stay of execution of the decree of the Court below. At the time the Rule was issued, the Court also made an order under Sub-rule (4) of that Rule for stay of execution pending the hearing of the application. The circumstances under which the application has been made may be briefly narrated. Maharani Beni Prasad Keori of Dumraon died on the 13th December, 1907. The plaintiff Kesho Prasad Singh alleges that two days later he was evicted from the Raj estate, though he was the rightful owner thereof, and on the 16th December, 1907, the Court of Wards declared an infant, Jung Bahadur Singh, now known as Maharaj Kumar Srinibash Prasad Singh, as the owner thereof and took possession of the Raj on his behalf. On the 5th February, 1909, Kesho Prasad Singh commenced an action in the Court of the Subordinate Judge of Shahabad for declaration of his title, for the recovery of possession of the Dumraon Raj estate, for accounts and mesne-profits and for incidental reliefs. The suit, which was valued at three crores of rupees, was brought against the infant Jung Bahadur Singh alleged to have been adopted by the late Maharani under an authority from her husband, Maharaja Sir Radha Prasad Singh; the Collector of Shahabad, as representing the Court of Wards, and the Manager under the Court were also joined as defendants. The claim was strenuously resisted on behalf of the defence, and after a protracted trial, extending over many months, a decree was made in favour of the plaintiff on the 12th August, 1910. The operative part of the decree is in the following terms : "The plaintiff, Babu Kesho Prasad Singh, being the lawful heir of the Dumraon Raj, is entitled to recover possession of all the properties appertaining thereto, and the defendant should make over peaceful possession of the same. He is further entitled to the reliefs prayed for in the plaint. The Court of Wards is liable to render accounts of all monies, movables and immovables of which it took possession at the time of its assumption of the charge of the estate. It is further declared to be liable for mesne-profits and other benefits for the period the plaintiff is kept out of possession, that is, from the date of dispossession up to the time he is restored to possession. The plaintiff shall be entitled to all his costs from-the Court of Wards with interest up till realization." On the 8th September, 1910, the infant defendant represented by his guardian under the Court of Wards and also the Collector of Shahabad appealed to this Court against the decree of the Subordinate Judge, and obtained the Rule now under consideration, as also the interim order for stay of proceedings, to which reference has been made. The Rule first came to be heard before my learned brother Coxe and myself on the 4th December, 1910. The materials then before the Court were the petition upon which the Rule had been issued, verified on the 7th September, 1910, and the affidavit of the plaintiff-respondent Kesho Prasad Singh sworn on the 1st December, 1910. After elaborate arguments the petitioners obtained an adjournment to enable them to consider what security they might offer under Order 41, Rule 5, Sub-rule 3, 3 Clause (c) if the Court felt disposed to make an order for stay of execution. The Rule came on for further arguments on the 19th December, 1910. Meanwhile the petitioners had adopted, what must be regarded as an unusual and irregular course. On the 15th December, 1910, they filed an affidavit, which was ostensibly an affidavit in reply to that filed by the respondent Kesho Prasad Singh on the 1st December, 1910, but which in reality introduced new matters, to supplement the allegations in their original application. Thereupon Kesho Prasad Singh on the 19th December, 1910, filed another affidavit, in which he protested that the affidavit filed by the petitioners on the 15th December; 1910, was irregular and ought not to be accepted. Kesho Prasad Singh also contradicted various allegations made in the second affidavit filed by the petitioners. The Rule was then further heard before my learned brother Coxe and myself on the 19th December, 1910. But as the petitioners were not ready to make a definite offer of security, they obtained another adjournment. The Rule then came to be heard by my learned brother Teunon and myself on the 4th January, 1911, when the petitioners offered as security what was described as a guarantee by the Secretary of State for India. The case was then further adjourned to enable the Advocate-General to be heard as amicus curia? on behalf of the Secretary of State for India. Rule arguments were addressed to the Court on the 17th and 18th January by the learned Advocate-General and by learned Counsel on behalf of the decree-holder respondent and the judgment-debtors appellants. On behalf of the decree-holder, it was contended that the Rule ought to be discharged, first, because, upon the materials placed before the Court, there was no proof that substantial loss might result to the appellants, unless an order for stay of execution was made; and, secondly, because the security offered was not legally enforceable, and at any rate its validity was open to such grave doubt that it ought not to be accepted as a good security on the purposes of stay of execution. The learned Counsel for the decree-holder further contended that the petitioners had acted in an entirely irregular manner, as it was not open to them to place on the record what was essentially a supplemental affidavit after the hearing had commenced and the matter had been adjourned to enable the appellants to consider whether they could comply with the requirements of the Code in the matter of security. On behalf of the judgment-debtors petitioners, it was contended that substantial loss would result to them if execution was not stayed, and that the guarantee offered furnished adequate security for the protection of the decree-holder in the event of his ultimate success. On behalf of the Secretary of State for India, the learned Advocate-General, as amicus curia, further contended that the guarantee offered one his behalf was ample security and its validity could not be questioned in a Municipal Court. The questions raised are of some novelty and by no means free from doubt and difficulty. The Court has consequently taken time to give the fullest consideration to the arguments advanced on both the sides.

(2.) Order XLI, Rule 5, of the Code of 1908 provides in Sub-rule (1) that an appeal shall not operate as a stay of proceedings under a decree, except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree, but the Appellate Court may for sufficient cause order stay of execution of such decree. Sub-rule (3) next provides that no order for stay of execution shall be made under Sub-rule (1), unless the Court making it is satisfied, (a) that substantial loss may result to the party applying for stay of execution, unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree as may ultimately be binding upon him.

(3.) Each of these three elements is an essential pre-requisite to the grant of an order for stay of execution, and it is the duty of the Court to satisfy itself that each of these conditions has been fulfilled before an order is made in favour of the judgment-debtor. In the present case, no question arises as to the second element; the application was made very promptly, in fact even before the decree-holder could make an application for execution of his decree. The question, therefore, is restricted to the other two elements, and they may be separately considered.