NAND KISHORE SING Vs. RAM GOLAM SAHU

JUDGEMENT

(1.) This Rule raises a question of first impression and of considerable importance, namely, whether this Court is competent to make an order for stay of proceedings in execution of its decree, in view of an application by the judgment-debtor to the Judicial Committee for special leave to appeal to His Majesty in Council. The circumstances, under which the application has been made, are not disputed and may be briefly stated. The petitioners were defendants in a mortgage suit. The Court of first instance dismissed the suit on the merit. On appeal to this Court, that decree was reversed and the usual mortgage decree made on the 16th February 1911. The defendants applied to this Court for leave to appeal to His Majesty in Council. This application was refused on the 19th March 1912, on the ground that the decree did not involve a claim to a property of the value of Rs. 10,000 or upwards. The defendants applied to this Court to review this order; that application was refused on the 16th April 1912. The position, therefore, is that in so far as the Courts of this country are concerned, the mortgage decree has become final. On the 7th July 1912, the defendants, however, made the present application for a stay of proceedings in execution of our decree, for which the decree-holder had applied to the Court below on the 2nd November 1911, during the pendency of the application in this Court for leave to appeal to His Majesty in Council The present Rule was granted on the application of the 7th July 1912. The petitioners state in their affidavit that they have taken steps to apply to the Judicial Committee for special leave to appeal to His Majesty in Council, and at the hearing before us, the learned Vakil for the petitioners stated that the papers and costs have been transmitted to their Solicitors in England. The decree- holders opposed the application on the ground that as in appeal or application for leave to appeal is pending in this Court or elsewhere, the Court has no jurisdiction to grant a stay of proceedings. It is not disputed that there is no statutory provision applicable to this question; indeed, the absence of a provision in this behalf is not a matter for surprise, because the Code of Civil Procedure does not deal with applications for special leave to appeal to His Majesty in Council, though Section 112 of the Code of 1908 declares that nothing in the Code shall be deemed to bar the full and unqualified exercise of His Majesty s pleasure in receiving or rejecting appeals to His Majesty in Council. The question, therefore, arises whether this Court is competent, in the exercise of its inherent power, to stay proceedings under these circumstances. Section 151 of the Code does not lay down any new principle, but merely declares that the Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The existence of this inherent power to do justice has been recognized from the earliest times, Hurro Chunder v. Sooradhonee Debia 9 W.R. 402; B.L.R. Sup. Vol. 985 and has been repeatedly affirmed: Panchanan v. Dwarka Nath 3 C.L.J. 29 and Hukum Chand v. Kamala Nand 3 O.L.J. 67; 33 0. 927. This inherent power is not, as has sometimes been supposed, capriciously or arbitrarily exercised; it is exercised ex debito justitiae, to do that real and substantial justice for the administration of which alone the Court exists. In other words, as Mr. Justice Woodroffe puts it in Hukum Chand v. Kamalanand 3 O.L.J. 67; 33 0. 927 the Court in the exercise of such inherent power must be careful to see that its decision is based on sound general principles and is not in conflict with them or the intentions of the Legislature. It is not necessary for my present purpose to formulate the circumstances under which a Court will exercise its inherent power; various instances will be found mentioned in the judgments in Hukum Chand v. Kamalanand 3 O.L.J. 67; 33 0. 927. Amongst obvious cases may be mentioned, consolidation of suits and appeals, postponement of the hearing of a suit pending the decision of a selected action, stay of cross-suits on the ground of convenience, inquiry as to whether all the proper parties are before the Court, entertaining an application of a stranger to be made a party, the addition of a party, entertaining a defence in forma pauperis, deciding one question while reserving another for investigation, remanding a suit which has not been properly tried, staying the drawing up of the Court s own order, suspending the operation of the Court s order, staying proceedings pending an appeal in a guardianship matter and appointing a temporary guardian ad interim, applying the principle of res judicata to execution proceedings for the sake of finality, punishing contempt of Court committed when the Court is not sitting, deciding questions of jurisdiction though the Court is ultimately found not to have jurisdiction over the suit, directing a party who has applied for leave to appeal to His Majesty in Council to pay costs on the dismissal of his application, amending decrees or orders, granting restitution in cases of reversal of execution sales and orders in execution proceedings, restraining by injunction a person from proceeding with a suit in the Small Cause Court, staying proceedings pursuant to its own order in view of an intended appeal, and treating an application for revision as an appeal and vice versa: Mahomed Wahiduddin v. Hakiman 25 C.757; 2 C.W.N. 529; Tara Pado Ghose v. Kamini Dasi 29 C. 644; Mahadeo v. Budhai Ram 26 A. 358; (1904) A.W.N. 50; Godu Ram v. Surajmal 2 A.L.J. 18. Let me examine the matter before us in the light of this principle. The decree-holders contend that the Court is not competent to grant a stay, because no appeal or application for leave to appeal is pending here or elsewhere. This argument is based on the assumption that the Court has authority to grant a stay, only when an appeal or an application for leave to appeal is pending. The assumption is groundless and is negatived by Order XLI, Rule 5(2), of the Code of 1908, which expressly recognises the position that an original Court may, for a limited time, stay proceedings in execution of its own decree, in view of a possible appeal to a superior tribunal. The principle, thus recognised by the Legislature in express terms, furnishes, in my opinion, a useful guidance in the determination of the question, how the inherent power of this Court should be exercised in a matter of this description. That the Court has inherent power to stay proceedings pursuant to its own order in view of an intended appeal, even though there is no express statutory provision in that behalf, is conclusively shown by the case of Brij Coomaree v. Ramrick Dass 5 O.W.N. 781. This is one aspect of the matter. Another point of view is of equal, if not greater, importance. The Judicial Committee have laid down, in Nityamoni Dasi v. Madhusudan Sen 38 I.A. 74; 38 C. 335; 13 C.L.J. 529; 11 Ind. Cas. 384; 8 A.L.J. 449; 13 Bom. L.R. 419; 10 M.L.T. 25; (1911) 2 M.W.N. 124; 4 Bur. L.T. 123 (P.C.) that as soon as an appeal has been admitted by special leave of His Majesty in Council, the High Court is vested with authority to stay execution, in the same manner as if leave to appeal had been granted by the High Court itself. Consequently, if the proposed application by the petitioners for special leave to appeal to His Majesty in Council is granted by the Judicial Committee, this Court will be competent to stay proceedings under the authority of the decision just mentioned. The Court, therefore, ought now to act in aid of a possible order for stay that may hereafter have to be made. If the contrary view is taken, what is the result? Assume that the present application for stay is refused, and the decree-holders are permitted to sell the mortgage properties; the application for special leave is granted by the Judicial Committee, and an application then made to this Court by the judgment-debtors for stay of proceedings. Are we to say that our action has already been paralysed, that we are powerless to grant relief and that the application is infructuous? I am strongly of opinion, after most anxious consideration of the subject, that the Court should not tolerate such a result, and as I have shown, the position may be avoided by the recognition of sound judicial principles. The decree now under execution was made by this Court, and the Court has control over it, so as to enable the Court to stay proceedings in view of a possible appeal to His Majesty in Council. It is fairly obvious that if the contention of the decree-holders were to prevail, the gravest injustice might be done to litigants. An application to the Judicial Committee for special leave to appeal to His Majesty in Council, must necessarily take time; distance cannot be annihilated, and time must be occupied, inspite of the utmost expedition, in the preparation and transmission of papers. Besides, their Lordships of the Judicial Committee do not hold their sittings continuously throughout the year, and weeks may elapse before the most diligent of suitors is able to obtain special leave to appeal to His Majesty in Council; if, meanwhile, his properties are allowed to be sold up by the decree-holders on the theory that this Court is powerless to interfere, not only may an application for stay after the grant of the special leave, as contemplated by the Judicial Committee in Nityamani v. Madhusudan 38 I.A. 74; 38 C. 335; 13 C.L.J. 529; 11 Ind. Cas. 384; 8 A.L.J. 449; 13 Bom. L.R. 419; 10 M.L.T. 25; (1911) 2 M.W.N. 124; 4 Bur. L.T. 123 (P.C.) become infructuous, but the appeal admitted by special leave of their Lordships of the Judicial Committee may turn out to be wholly illusory and ineffectual.

(2.) It cannot seriously be maintained that the grant of a stay in any way throws doubt on the decree or weakens its effect; the stay is granted on the principle that the parties should, if the circumstances justify the adoption of such a course, be retained in status quo till the validity of the decree has been tested in the Court of ultimate appeal.

(3.) The exercise of the inherent power of the Court should thus be widened to aid the administration of justice and not unduly restricted so as to cause needless hardship to litigants and a possible failure of justice. I hold, therefore, that this Court has authority to grant this application. The stay, however, can be granted only for a limited time, and on terms. The rule, in my opinion, should be made absolute and execution proceedings stayed till the 30th November 1912, and the Court below directed to value the mortgage properties and the judgment-debtors called upon to furnish security for so much of the judgment debt as may exceed the value so determined; if security is not furnished within a time to be prescribed by the Court below, the decree-holders will be entitled to proceed with execution of their decree.