Ram Singh & Ors. vs Sohinder Singh Bedi
2010 Latest Caselaw 3929 Del

 

* IN THE HIGH COURT OF DELHI AT NEW DELHI




		C.M. No. 12001/2009 

				In 

		   RFA No. 138/2005


						


%		              	Judgment reserved on: 28.7.2010


				Judgment delieved on 25.08.2010





Ram Singh & Ors.			...... Petitioner


		Through:	Mr. K.B. Soni & Mr. S.K. Gupta,


				Advocates for  the appellant.


		


versus





Sohinder Singh Bedi			..... Respondent




	Through:	Mr.  S.K. Puri, Sr. Advocate 

 		 Mr. Praveen Kumar, Advocate 

		 respondent  




CORAM:


HON'BLE MR. JUSTICE KAILASH GAMBHIR





1. 	Whether the Reporters of local papers may   Yes


be allowed to see the judgment? 





2. 	To be referred to Reporter or not? 		  Yes	





3. 	Whether the judgment should be reported    Yes


in the Digest? 							





KAILASH GAMBHIR, J. 

*

1. By this application filed under Order 41 Rule 5 r/w Section 151 of the Code of Civil Procedure, 1908, the respondent/applicant seeks directions to direct the appellants to furnish security for the restoration of land and also to pay damages for use and occupation of the demised property with further directions to the appellants to continue to deposit damages every month till the disposal of the appeal.

2. Brief facts of the case relevant for deciding the present application are that the respondent/ applicant filed a suit (Suit No.446/2001) for possession of the property bearing Plot no.93 , Prakash Mohalla , Sant Nagar Extension, Villlage Garhi, Jharia Maria, New Delhi which vide judgment dated 28.2.2005 was decreed in favour of the respondent. Feeling aggrieved with the said judgment, the appellant filed an appeal which is still pending. Along with the appeal, the appellant had filed an application under Order 41 Rule 5 for stay of the execution of the said decree dated 28.2.2005 which stay was granted by the Division Bench of this Court vide order dated 14.3.2005. The said stay order was made absolute by this court vide order dated 20.4.2005 in the presence of the counsel for the respondent/ applicant. As the stay was granted without the direction to furnish security by the appellant, feeling aggrieved by the same the respondent has filed the present application under Order 41 Rule 5 to direct the appellant to furnish security for the stay granted.

3. The only reason given by the respondent for invoking Order 41 Rule 5 CPC is that this court ignored the legislative mandate of Order 41 Rule 5 CPC by not giving any direction to the appellant to furnish security at the time of passing the ex-parte order dated 14.3.2005 staying the execution of the decree. The application of the respondent is strongly opposed by the appellants. In their reply, the appellants submitted that the instant appeal was heard by the Division Bench on 14.03.2005 and on the interim application moved by the appellants under Order 41 Rule 5 CPC vide CM No. 3627/2005 operation of the impugned judgment and decree dated 28.02.2005 was directed to be stayed till further orders. It was also directed that no further construction shall be carried out and status quo as on that day in respect of the title, possession and nature of construction shall be maintained by all the parties till the next date. The appellants further averred that the said order of the Division Bench dated 14.03.2005 was made absolute vide order dated 20.04.2005. The appellants further stated that the Hon'ble Division Bench has already directed the appellants to maintain status quo with regard to the title, possession and nature of the construction as existing on the property. The appellants thus stated that the application moved by the respondent is misconceived and untenable in the eyes of law.

4. Mr. S.K. Puri, counsel for the respondent/ applicant submitted that sub rule 3 of Rule 5 of Order 41 CPC prohibits the court from staying execution of the decree unless the conditions given in the said sub rule are satisfied. The contention of the counsel was that the said provision is couched in a mandatory language and unless all the three conditions of the said sub rule 3 are satisfied, no order to stay the execution can be made by the court. Counsel for the respondent further submitted that the said application under Order 41 Rule 5 can be moved at any stage of the appeal in a case where no such direction has been given by the court earlier, requiring the appellant to furnish security for the due performance of the judgment and decree appealed against. Counsel further submitted that this court can always vary the earlier order if it is found that the earlier order passed by this court is void or the same suffers from some jurisdictional error. The contention of the counsel for the respondent was that the respondent cannot be made to suffer if there has been a mistake on the part of the court in not giving appropriate directions in accordance with the mandate of sub rule 3, Rule 5 of Order 41 CPC. Counsel thus submitted that this court is not debarred to pass a fresh order under Order 41 Rule 5 CPC in view of the patent illegality manifest in the earlier order passed by the Hon'ble Division Bench. In support of his arguments, counsel for the respondent placed reliance on the following judgments:

1. Budhia Swain & Ors. Vs. Gopinath Deb& Ors AIR 1999 SC 2089.

2. Hardayal Vs. Surja Ram AIR 1977(P&H) 259.

3.	Union Bank of India & Anr. Vs. Jagan Nath     Radhey Shyam & Anr. AIR 1979 Delhi 36 



4. 	Mohd. Abdus Samad Vs. Mahboobunnisa Begum, AIR 1970 AP 210.

5. Opposing the present application, counsel for the appellants submitted that the deposit of the decretal amount and furnishing of security is not a condition precedent for the hearing of the appeal as the word "shall" used in sub rule 3 of Rule 5 of Order 41 has to be construed as "may". In support of this argument, counsel placed reliance on the judgment of the Andhra Pradesh High Court in J. Lakshmikantham Vs. Uppala Rajamma & Ors. AIR 1982 AP 337. Counsel for the appellants further submitted that the ex-parte order passed by the Hon'ble Division Bench on the application of the appellants moved under Order 41 Rule 5 was made absolute by the High Court in the presence of the counsel representing the respondent and therefore the respondent cannot turn around to re-agitate the said issue by moving a fresh application. The contention of the counsel for the appellants was that the respondent is estopped to seek modification of the said order which remained unchallenged for the past about 4-1/2 years.

6. I have heard learned counsel for the parties at considerable length and given my thoughtful consideration to the arguments put forth by them.

7. Before adverting to the contentions raised by the counsel for the parties, it would be appropriate to reproduce Order 41 Rule 5 CPC as under:-

"Stay of proceedings and of execution

5. Stay by Appellate Court

(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from 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.

[Explanation--An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.]

(2) Stay by Court which passed the decree--Where an application is made for Stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-Rule (1) or sub-Rule (2) 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 or order as may ultimately be binding upon him.

(4) [Subject to the provisions of sub-Rule (3)], the Court may make an ex parte order for stay of execution pending the hearing of the application.

[(5) Notwithstanding anything contained in the foregoing sub-Rules, where the appellant fails to make the deposit or furnish the security specified in sub-Rule (3) of Rule 1, the Court shall not make an order staying the execution of the decree."

8. The Hon'ble Supreme Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 while dealing with the provision of Order 41 Rule 5 CPC observed as under:-

"Mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate court and the appellate court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in Order 41 Rule 5 CPC is the existence of sufficient cause in favour of the appellant on the availability of which the appellate court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate court is that in spite of the appeal having been entertained for hearing by the appellate court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the court dealing with a prayer for the grant of stay asks itself is: why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted.

Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be "substantial loss" to the party applying for stay of execution within the meaning of Order 41 Rule 5(3)(a) CPC. The condition that may be imposed under Order 41 Rule 5(3)(c) is not the only condition which the appellate court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not a statutory right conferred on the appellant. So also, an appellate court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an applicant for order of stay must do equity for seeking equity. Depending on the facts and circumstances of a given case, an appellate court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. Therefore while passing an order of stay under Order 41 Rule 5 CPC, the appellate court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned. Such terms, needless to say, shall be reasonable. Thus, for example, though a decree for payment of money is not ordinarily stayed by the appellate court, yet, if it exercises its jurisdiction to grant stay in an exceptional case it may direct the appellant to make payment of the decretal amount with interest as a condition precedent to the grant of stay, though the decree under appeal does not make provision for payment of interest by the judgment-debtor to the decree-holder. Robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record - all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on."

9. The language of sub rule 3 of Rule 5 of Order 41 no doubt is emphatic and imperative, which categorically lays down that no order for stay of execution shall be made unless the Court making it is satisfied that substantial loss may result to the party applying for stay of execution if the stay is not granted; that the application has been made without unreasonable delay and security has been given by the applicant for the due performance of such a decree. Sub Rule 4 further lays down that subject to the fulfillment of the conditions laid down in sub-rule 3, the Court may make an ex parte order for stay of execution pending hearing of the application. Interpreting sub-rule (3) (c ) of Rule 5 the Apex Court in the case of Atma Ram Properties (Supra) has held that the condition envisaged under sub rule (3) (c ) is not the only condition which the appellant court can impose. The Apex Court has further held that depending on the facts and circumstances of a giving case an Appellate Court, by passing an order of stay may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. In the facts of the present case, the appellate court instead of passing any directions in terms of sub-rule (3) (c ) directed the appellant not to raise any further construction on the property and both the parties to maintain status-quo in respect of the title, possession and nature of construction as on that date. It would be thus quite evident thereof that no illegality was committed by the Hon'ble Division Bench at the time of granting the ex-parte stay in favour of the appellant. Although the appellant has raised a grievance that the Hon'ble Division Bench did not follow the mandate of sub-rule (3) (c) of Rule 5 of Order 41 of CPC but the controversy in hand has another important facet. Here is a case where the respondent has woken from deep slumber to approach this Court under Order 41 Rule 5 to agitate imposition of the said conditions now after about four and a half years, which were not imposed earlier by the Court at the time of granting ex parte stay order and even at the time of confirming the said order. It is not in dispute that the respondent never raised any grievance or took recourse to any remedy to challenge the said ex parte order dated 14.3.2005 passed by the Hon'ble Division Bench at the time of the admission of the appeal or anytime thereafter till the filing of the present application. Not only that, the said ex parte order was made absolute in the presence of the respondent duly represented through counsel on 20.4.2005. It is thus quite evident that the respondent himself is a consenting party to the said order and, therefore, clearly the respondent having acquiesced to the said order with his explicit consent to the same, now is desirous of imposition of the conditions laid down under Order 41 Rule 5. Undoubtedly, the respondent was well within his rights to have impressed upon the Court to impose the said conditions at the relevant time, but since the respondent became a consenting party to the said order, therefore, the respondent is clearly estopped under law to challenge the same by moving a fresh application under the said provision. At the time of passing of the order under Order 41 Rule 5(3), the decree holder can always give concession to the appellant and may not insist upon the appellant to furnish security for the due performance of the decree appealed against. Once having given such concession, the respondent cannot turn around to claim imposition of the said conditions now at this belated stage. Therefore, the remedy is not available to the respondent under Order 41 Rule 5 CPC, which provision has been ordained for the benefit of the appellant in appeal challenging the money decree or any other decree wherein he is seeking the stay of the execution of decree appealed against. The respondent at the most could have challenged the said order passed by the Court under Order 41 Rule 5 in appropriate proceedings and not by moving such an application after about a period of more than 4 years on the ground of jurisdictional error.

10. The judgment of the Apex Court relied upon by the counsel for the applicant in Budhia Swain's case (Supra) does not support the case of the applicant but rather goes against him. The Apex Court in this judgment has clearly laid down the principles that under what circumstances the court in exercise of its inherent powers can recall its own order. Referring to the earlier judgment of the Apex Court in the case of Indian Bank Vs. Satyam Fibres India Pvt. Ltd., AIR 1996 SC 2592, the Court held that the tribunals or the Courts may recall its order earlier made by it if:

(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent;

(ii) there exists fraud or collusion in obtaining the judgment;

(iii) there has been a mistake of the court prejudicing a party or;

(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died or the estate was not represented.

11. Mr. Puri, counsel for the applicant laid much stress on the condition "(iii)" to impress upon his arguments that since in this case also a mistake was committed by the court prejudicing the applicant, therefore, in exercise of its inherent jurisdiction, the court can now rectify its mistake by imposing the condition as envisaged under sub rule 3 of Rule 5 of Order 41 CPC. However, the counsel perhaps did not take note of the fact that before any case is covered under any of the aforesaid conditions it must qualify the other conditions laid down in the said judgment. The Apex Court in the said judgment clearly took a view that a motion to vacate will not be entertained when the proper remedy is by some other proceedings, such as by way of an appeal. The Apex Court further held that the right to get a judgment vacated may be lost by waiver or estoppel or acquiescence. It would be useful to refer to the relevant paras of the said judgment here:

"7. In Corpus Juris Secundum (Vol. XIX) under the Chapter "Judgment - Opening and Vacating" (paras. 265 to 284 at pages 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actions. Invalidity of the judgment of such nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings, such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results.

8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence."

12. The other three judgments cited by the counsel for the applicant elucidate the principles ordained under Order 41 Rule 5 CPC and there cannot be any dispute on the same.

13. Hence, in the light of the aforesaid discussion, the present application filed by the applicant is devoid of any merit and the same is hereby dismissed with a cost of Rs.10, 000/-.

August  25, 2010                      KAILASH GAMBHIR, J