HUKUM CHAND BOID Vs. KAMALANAND SINGH

JUDGEMENT

(1.) The appellant bought on the 14 May 1904 a putni taluk at a sale for arrears of rent. The respondents held a darputni in certain mauzas in the putni mehal. The appellant got possession. The respondents then brought a suit to set aside the sale. A decree was passed in their favour on the 24 August 1905 ordering that they should be put back into possession. On the 14 September the decree was signed and on the same day the respondents with haste applied for and obtained (notwithstanding an application by the respondents for stay of delivery in order to enable him to move this Court) an order for delivery of possession of the villages comprised in their durputm. On the 18 September an appeal, which is now pending, was filed in this Court. On the same date the appellant obtained a rule, No. 3423, under Section 545 of the Code calling upon the respondents to show cause why delivery of possession should not be stayed pending the hearing of the appeal. The rule further ordered that in the meantime and pending the hearing of this rule, all further proceedings should be stayed. Before however the rule reached the Lower Court, but after it had been granted, possession was obtained by the respondents. As Section 545 does not apply after execution has been carried out, the appellant, in consequence of the actual delivery of possession, obtained another rule, No. 3443, (which together with the former rule is now before us) to show cause why security should not be taken from the respondents for the due performance of any decree, which may be made by this Court in the appeal. The second application purported to be made under Section 546.

(2.) It is not necessary for me to discuss the merits of the case as the learned pleader for the respondents has consented to the form of the order, which we pass, provided that we are of opinion that we have power to make it. He has however contended that we have not. He submits that Section 546 does not apply, that there is no other section which does, and that our powers are limited to what the Code expressly says may be done. I think the argument is sound so far as it disputes the applicability of Section 546. That section has reference to the case where an order has been made for execution and the execution is pending or about to be given effect to. It does not apply where the order for execution has been actually carried out and where, as in the present case, the property in suit has actually been delivered under the order made; for it cannot be said when a decree has been executed that the respondents are going to enforce any order for execution. They have already done so. In point of fact there is in such case, no order for execution at all. It was accordingly held under Section 36, Act XXIII of 1861, which corresponds to Section 546 that after property, the subject of litigation, has been given over in execution of a decree to the plaintiff it is not within the scope of this section to exact security for the restitution of such property in the event of a successful appeal, Matisukhmm Purshotam V/s. Javarevohu (1870) 7 Bom. H.C.A.C.J. 122. This is also shown to be the case by the words of Section 546 "which may be taken in execution" that is, in future, not "which may be or may have been taken in execution", and by the nature of the provision itself, the intention being to enable the Court to fix terms upon the party taking out execution, the penalty for non-compliance with such terms being that the order in such case will not be allowed to be carried out. Section 546 therefore does not apply. But then it is argued that, if that be so, the appellant is out of Court as there is no express provision of the Code which allows of an application of this nature. In other words it is contended that the Court has no powers in matters of procedure other than those expressly conferred by the Code. This argument assumes that the Code was intended to be and is exhaustive. It is one with which in previous judgments I have had to deal, it having been then as now (and as appears not uncommonly to be the case) thought that it is sufficient (without anything more) to defeat an application or to reverse an order, that no precise section of the Code can be cited as an authority for it. For my part I am always slow to believe that the Court's powers are unequal to its desire to order that which it believes to be just. As was said in Durga Bihal Das V/s. Anoraji (1894) I.L.R. 17 All. 29, 31 the Code is not exhaustive, there are cases which are not provided for in it, and to adopt the observations made in that case I decline to believe that those are cases, where this Court must fold its hands and allow injustice to be done. With the exception of a passing observation of Strachey C. J. in Habib Bakhsh V/s. Baldeo Prasad (1901) I.L.R. 23 All. 167, 173, I am not aware of any authority, which has laid down that the Code is exhaustive. The essence of a Code no doubt is to be exhaustive on the matters in respect of which it declares the law. On any point specifically dealt with by it the law must be ascertained by interpretation of the language used by the Legislature. In respect of such matters the Court cannot disregard or go outside the letter of the enactment according to its true construction. The Code therefore binds all Courts so far as it goes. It does not however affect previously existing powers, unless it takes them away. Further the law cannot (as pointed out by Sir Barnes Peacock C. J.) make express provisions against all inconveniences so that their dispositions shall express all the cases that may possibly happen, and it is therefore the duty of a Judge to apply them not only to what appears to be regulated by their express provisions, but to all the cases to which a just application of them may be made and which appear to be comprehended, either within the express sense of the law or within the consequences that may be gathered from it. Hurro Chunder Roy Choicdhry V/s. Shoorodhonee Debia (1868) 9 W.R. 402, 406. The Code does not as I have already had occasion to hold, Punchanon Singh V/s. Kunuklota Barmoni (1905) 3 C.L.J. 29 affect the power and duty of the Court, in cases where no specific rule exists, to act according to equity justice and good conscience, though in the exercise of such power it 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. There are also matters, and I do not now deal with them, in which a question may arise whether the right to make an application or the exercise of a power is derived entirely from express legislation, as in the case of the right to prefer and entertain an appeal or to award costs, it being a matter of dispute in the latter case whether a question of costs is one of procedure or one affecting vested rights. The Court has, therefore, in many cases, where the circumstances require it, acted upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration, for which it alone exists. It has thus been held that, although the Code contains no express provision on the matters hereinafter mentioned, the Court has an inherent power ex debito justilice to consolidate; postpone pending the decision of a selected action; and to advance the hearing of suits; to stay on the ground of convenience cross suits; to ascertain whether the proper parties are before it; to enquire whether a plaintiff is entitled to sue as an adult; to entertain the application of a third person to be made a party; to add ( Section 32 not being exhaustive) a party; to allow a defence in forma pauperis; to decide one question and to reserve another for investigation, the Privy Council pointing out that it did not require any provision of the Code to authorise a Judge to do what in this matter was justice and for the advantage of the parties; to remand a suit in a case to which neither Section 562 nor Section 566 applies; to stay the drawing up of the Court's own orders or to suspend their operation, if the necessities of justice so require; to stay, apart from the question whether the case falls within Section 545, the carrying out of a preliminary order pending appeal; to stay proceedings in a lower Court pending appeal and to appoint a temporary guardian of a minor upon such stay; to apply the principles of res judicata to cases not falling within Secs.13 and 14 of the Code and so forth. These instances (and there are others) are sufficient to show, firstly that the Code is not exhaustive and, secondly, that in matters with which it does not deal, the Court will exercise an inherent jurisdiction to do that justice between the parties, which is warranted under the circumstances and which the necessities of the case require.

(3.) I hold therefore that the mere fact that there may be no express provision in the Code, which meets the present case, is not in itself a bar to the grant of the application. It still however remains to be seen whether, apart from this, the case is one in which we should interfere.