ANAND DAS Vs. RAM BHUSAN DAS

JUDGEMENT

(1.) The opposite party who claims to be the lawful Mohanth of a math in the district of Darbhanga has obtained a decree for possession of the property of the math against the petitioner. The petitioner, after having appealed against the decree, moved this Court to stay the delivery of possession and on August 14, 1936, this Court rejected the petition but directed that before any order for delivery of possession is made, the respondent should furnish security to the satisfaction of the Subordinate Judge for 3 years income of the math property together with such additional security as the Subordinate Judge may think necessary on account of the movables. The Subordinate Judge after some calculation directed the opposite party to furnish security to the extent of Rs. 1,53.473 and such security has been offered on behalf of the opposite party by five persons and has been accepted by the learned Subordinate Judge by his order dated December 3, If 36. It is this order which is the subject of the present application.

(2.) A question arose at the time of the argument whether the order of the learned Subordinate Judge should be deemed to be one under Section 47, Civil Procedure Code, and whether an appeal or an application in revision lay against it. It appears that there has been some difference of opinion in the Calcutta High Court on this question. In Budra Narain Jana V/s. Naba Kumar Das 22 CWN 657 : 44 Ind. Cas. 156 : AIR 1919 Cal. 471, it was held that such an order was not an interlocutory order and an appeal lay against it. A contrary view was, however, taken in Saraswati Barmonya V/s. Moti Barmoya 41 C 160 : 20 Ind. Cas. 72 : AIR 1914 Cal. 149 : 17 CWN 1240. The learned Judge who decided the case held that an order for security to stay execution was not an order determining the rights of the parties and that it being neither an order under Section 47 nor a decree within the meaning of Section 22, Civil Procedure Code, was not appealable. The facts of the two GSIS6S somewhat differ from each other. In the first case it had been ordered that upon furnishing security of a certain value specified in the order the decree- holder was at liberty to proceed with the execution. In the latter case the. order was that the execution was to be stayed on the judgment-debtor furnishing security to the satisfaction of the Subordinate Court. It has been contended before us on behalf of the opposite party that the two cases are hardly distinguishable from each other in principle because in both cases the order of the Subordinate Court may be said to be an order relating to the execution of the decree and. it would thus not be quite logical to hold that an appeal lay in the first case but it did not lie in the other. However that may be, the view which we are inclined to take in the matter is quite a different one. In our opinion the question whether an appeal lies against the order of the Subordinate Court in such a case can arise only if the order is passed by the Subordinate Court suo motu as a Court of execution. Here the Subordinate Judge has passed an order not on his own initiative but under the direction of this Court.

(3.) It is true that the order has been passed in the course of an execution proceeding, but this Court had jurisdiction as an Appellate Court having seisin of the appeal from the decree sought to be executed to order the decree-holder to furnish security, before taking possession of the disputed property. In our opinion the Court which directs security to be furnished is directly interested in seeing whether its orders have been complied with or not and though it may have delegated the function of enquiring into the sufficient of security to a Subordinate Court and left it entirely to that Court to decide the sufficiency or otherwise of the security, it can always intervene if the Subordinate Court misdirects itself in conducting the enquiry, This Court while making the original order can always direct the Subordinate Court to apply the principles which it would have itself applied if it had not delegated its function to the latter and if the Subordinate Court has committed any error of principle it can also correct such error. At the same time if certain matters have been left to the discretion of the Subordinate Court, this Court will interfere only when the Court below has acted perversely or either misconstrued or misdirected itself on any principle of law and justice. It will do so on the principle that it cannot suffer any wrong or unreasonable order to be passed when such order has in law the same force and sanctity as an order passed by this Court.