Madhya Pradesh High Court
Roopsingh Patliya vs Additional Commissioner on 22 May, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 22 nd OF MAY, 2024
WRIT PETITION No. 13599 of 2024
BETWEEN:-
1. ROOPSINGH PATLIYA S/O SHRI VESTA PATLIYA,
AGED ABOUT 57 YEARS, OCCUPATION:
AGRICULTURE R/O; GRAM HAATYADEHLI,
TEHSIL AND DIST. JHABUA (MADHYA PRADESH)
2. RAKESH PATLIYA S/O SHRI ROOPSINGH PATLIYA,
AGED ABOUT 27 YEARS, OCCUPATION:
AGRICULTURE R/O: GRAM HAATYADEHLI,
TEHSIL AND DIST. JHABUA (MADHYA PRADESH)
3. BHIMA PATLIYA S/O SHRI ROOPSINGH PATLIYA,
AGED ABOUT 24 YEARS, OCCUPATION:
AGRICULTURE R/O: GRAM HAATYADEHLI,
TEHSIL AND DIST. JHABUA (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI VINAY GANDHI - ADVOCATE)
AND
1. ADDITIONAL COMMISSIONER DIST. INDORE
(MADHYA PRADESH)
2. SUB DIVISIONAL OFFICER (REVENUE) JHABUA,
DIST. JHABUA (MADHYA PRADESH)
3. TEH S I LD AR TEHSIL RAMA DIST. JHABUA
(MADHYA PRADESH)
4. SMT. SAKRI W/O SHRI SABUR BHEEL R/O: GRAM
FUTIYA, TEHSIL AND DIST. JHABUA (MADHYA
PRADESH)
.....RESPONDENTS
(BY MS. GEETANJALI CHAURASIA - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 25-May-24
12:15:07 PM
2
following:
ORDER
By this petition preferred under Article 226 of the Constitution of India,
the petitioners have challenged the order dated 13.02.2024 passed by the
Additional Commissioner, Indore Division, Indore whereby their application for
stay has been rejected.
02. Petitioners have preferred an appeal before the Additional
Commissioner against the order dated 13.07.2022 passed by the Sub Divisional
Officer (Revenue), District Jhabua. By order dated 02.08.2022, the appeal was
entertained and record was called for and the operation of the order passed by
the Sub Divisional Officer was stayed. Thereafter, by order dated 09.10.2023
the appeal was dismissed for want of prosecution. On an application filed by
the petitioners for restoration of the appeal, by order dated 06.12.2023 the
appeal was restored to its original number.
03. Petitioners were again heard on the question of stay by the Additional
Commissioner and by the impugned order dated 13.02.2024 the said prayer has
been rejected.
04. Earlier by order dated 02.08.2022 the Additional Commissioner had
stayed the order passed by the Sub Divisional Officer. Thereafter, the appeal
was dismissed in default by order dated 09.12.2023 which does not reflect that
while dismissing the appeal the stay order dated 02.08.2022 was vacated. Upon
restoration of the appeal by order dated 06.12.2023 the stay order dated
02.08.2022 automatically stood revived since at the time of dismissal of the
appeal the same had not been vacated.The restoration order also does not say
that the stay has not been restored.
05. In this regard reliance has rightly been placed by the learned counsel
for the petitioners on the decision of the Apex Court in Vareed Jacob Vs.
Sosamma Geevarghese, 2004 (6) SCC 378 in which it has been held as
under:-
"17. In the case of Shivaraya v. Sharnappa [AIR 1968 Mys 283 : (1967)
1 Mys LJ 414] it has been held that the question whether the restoration
of the suit revives ancillary orders passed before the dismissal of the suit
depends upon the terms in which the order of dismissal is passed and the
terms in which the suit is restored. If the court dismisses the suit for
default, without any reference to the ancillary orders passed earlier, then
the interim orders shall revive as and when the suit is restored. However,
if the court dismisses the suit specifically vacating the ancillary orders, then
restoration will not revive such ancillary orders. This was a case under
Order 39.
18. In the case of Saranatha Ayyangar v. Muthiah Moopanar [AIR 1934
Mad 49 : ILR 57 Mad 308] it has been held that on restoration of the suit
dismissed for default all interlocutory matters shall stand restored, unless
the order of restoration says to the contrary. That as a matter of general
rule on restoration of the suit dismissed for default, all interlocutory orders
shall stand revived unless during the interregnum between the dismissal of
the suit and restoration, there is any alienation in favour of a third party.
19. A similar view has been taken by the Patna High Court in the case
of Bankim Chandra v. Chandi Prasad [AIR 1956 Pat 271 : 1956 BLJR
454] in which it has been held that orders of stay pending disposal of the
suit are ancillary orders and they are all meant to supplement the ultimate
decision arrived at in the main suit and, therefore, when the suit, dismissed
for default, is restored by the order of the court all ancillary orders passed
in the suit shall revive, unless there is any other factor on record or in the
order of dismissal to show to the contrary. This was also a matter under
Order 39.
20. In the case of Nandipati Rami Reddi v. Nandipati Padma
Reddy [AIR 1978 AP 30 : (1977) 2 APLJ 64] it has been held by the
Division Bench of the Andhra Pradesh High Court that when the suit is
restored, all interlocutory orders and their operation during the period
between dismissal of the suit for default and restoration shall stand
revived. That once the dismissal is set aside, the plaintiff must be restored
to the position in which he was situated, when the court dismissed the suit
for default. Therefore, it follows that interlocutory orders which have been
passed before the dismissal would stand revived along with the suit when
the dismissal is set aside and the suit is restored unless the court expressly
or by implication excludes the operation of interlocutory orders passed
during the period between dismissal of the suit and the restoration.
21. In the case of Nancy John Lyndon v. Prabhati Lal
Chowdhury [(1987) 4 SCC 78] it has been held that in view of Order 21
Rule 57 CPC it is clear that with the dismissal of the title execution suit for
default, the attachment levied earlier ceased. However, it has been further
held that when the dismissal was set aside and the suit was restored, the
effect of restoring the suit was to restore the position prevalent till the
dismissal of the suit or before dismissal of the title execution suit. We
repeat that this judgment was under Order 21 Rule 57 whose scheme is
similar to Order 38 Rule 11 and Rule 11-A CPC and therefore, we
cannot put all interlocutory orders on the same basis."
06. Thus upon restoration of the appeal, the stay order dated 02.08.2022
automatically stood revived and the Additional Commissioner was not even
required to hear the petitioners afresh on the question of stay since there was
already a stay order in their favour. Thus, hearing on the question of stay and
rejecting the said prayer by the impugned order is hence wholly without
jurisdiction. The impugned order thus cannot be sustained.
07. As a result, the order dated 13.02.2024 (Annexure P/9) passed by the
Additional Commissioner is set aside and it is clarified that the order dated
02.08.2022 is operative. The respondents shall however be at liberty to make
appropriate application before the Additional Commissioner himself in respect
of the order dated 02.08.2022.
08. With the aforesaid, the petition stands allowed and disposed off.
(PRANAY VERMA)
JUDGE
Shilpa
