DHARMAPAL Vs. MOHANT KRISTA DAYAL

JUDGEMENT

(1.) The Court is invited in this Rule to stay execution of a decree made against the petitioners in the Court of the Subordinate Judge of Gaya on the 19 January 1909. The plaintiff opposite party commenced an action for declaration of right to and for possession of a house ordinarily known as the Burmese Rest-house near the Budh-Gaya temple. The defendants, now petitioners before this Court, resisted the claim on various grounds which are not material for the purposes of this Rule. After a protracted hearing the Subordinate Judge made a decree which entitled the plaintiff to recover possession of the house by ejectment of the defendants. The decree further directed the defendants to remove the images of Budha from the Rest- house and to vacate the house within one month from the date of the judgment. The judgment was delivered on the 19 January 1909. The decree, however, was not drawn up till the 5 February following. On the 15 February the defendants applied to the Subordinate Judge to extend the time within which they were directed to remove the image and to vacate the premises. The Subordinate Judge did not pass any order on this application. On the 11th February the defendant applied for a copy of the decree which was furnished to them on the 15 February. On the 25 February they preferred an appeal to this Court against the entire decree and on the 12 March applied for stay of execution during the pendency of the appeal. The Rule now under consideration was thereupon issued. The plaintiff opposite party contends that the Rule ought to be discharged on two grounds, namely, first, that the petitioners are in contempt as they have disobeyed the order of the Court below to remove the images of Budha and to vacate the premises within the time allowed which expired on the 18 February and that, therefore, they are not entitled to invite this Court to suspend the operation of the order which they have disobeyed; and secondly, that there are no merits in the application, that there is nothing to show that substantial loss may result to the defendants if the order is not suspended and is allowed to be enforced during the pendency of the appeal.

(2.) In support of the first of these grounds reliance has been placed by Mr. Hill upon the cases of Russel V/s. The East Anglian Railway Company (1850) 3 Mac. and G. 104; 6 Railw. Cas. 501; 20 L.J. (N.S.) Ch. 257; 15 Jur 1033; Clarke V/s. Dew (1829) 1 Rus and My. 103; Garstin v. Garstin (1865) 4 Sw. and Tr. 73; 34 L.J. Mat. 45; 13 W.R. 508; Herring V/s. Clovery (1841) 12 Sim. 410; Chuck V/s. Cromer (1846) 1 Cooper Temp. Cottenham 205 and Cavendish v. Cavendish (1866) 15 W.R. (Eng.) 182. On the authority of these cases it has been argued by the learned Counsel that a party in contempt is not entitled to be heard until he has cleared his contempt and that consequently he cannot ask for stay of execution of a decree which he has disobeyed and against which he has preferred an appeal after the period prescribed for carrying it out has expired. An examination of the cases, however, shows that the rule thus formulated is too broadly expressed.

(3.) In the first of these cases Russel V/s. The East Anglian Railway Company (1850) 3 Mac. and G. 104; 6 Railw. Cas. 501; 20 L.J. (N.S.) Ch. 257; 15 Jur 1033 it appears that the property in possession of a Receiver appointed by the Court in a suit was in two instances seized by the Sheriff under writs of fieri facias issued by the judgment-creditors of the defendants. It was ruled by Lord Cottenham that the Sheriff could not justify the seizures by questioning the propriety of the order under which the Receiver was appointed and that as the Sheriff submitted to an order for withdrawal from possession and payment of costs no order for commitment for contempt was necessary for the maintenance of the jurisdiction of the Court. It may be observed that the matter came before the Court by way of appeal from an order of the Vice-Chancellor refusing a motion of the plaintiff for the committal of the Sheriff. The observation of the Lord Chancellor, therefore, that it is not open to any party to question the orders of the Court or any process issued under the authority of the Court by disobedience, can hardly be treated as equivalent to the comprehensive proposition enunciated on behalf of the plaintiff.