Deo Chand Vs. Shiv Ram  INSC 181
(24 August 1964)
24/08/1964 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
CITATION: 1965 AIR 615 1965 SCR (1) 109
Supreme Court Rules, 1950, 0. XLV, r.
5-Inherent powers- Putting respondent in Supreme Court on terms-Whether in the
interests of justice.
Pending appeal in the supreme Court, obtained
possession of the suit property favour. The appellants did not take under
0.XLV, r. 13(2) of the code of Later, they applied to the supreme court
invoking the inherent powers of that Supreme court Rules. the respondents
(decree holders) in execution of the decree in their any action for stay or
directions Civil Procedure (Act V of 1908). to put the respondent on terms,
court under 0. XLV, r. 5 of the
HELD : The Supreme Court cannot exercise any
inherent powers to put the respondents on terms, or to direct them to furnish
security for the delivery of the suit property or for the payment of mesne
profits, or to restrain them from transferring the suit property. [115B-C].
The rule provides that the Rules of the
Supreme Court do not affect the inherent powers of the Court to make orders to
meet the ends of justice or to prevent abuse of process of Court. Since the
appellant would be entitled to recover such mesne profits as the law allows,
and any transfers of the suit property would be subject to the law of his
pendens, to pass any orders restraining a party in possession of property
delivered by Court, cannot be in the interests of justice. [115C-E].
CIVIL APPELLATE JURISDICTION: Civil
Miscellaneous Petition No. 1223 of 1964 in Appeal from the judgment and decree
dated August 31, 1962, of the Madhya Pradesh High Court in S. A. No. 597 of
Naunit Lal, for the petitioners.
The respondent did not appear.
ORDER This application purports to be one
under 0. XLV, rr. 2 and 5 of the Supreme Court Rules and contains the following
prayers :- (i) to direct the respondents to furnish security for delivering
possession of the lands in dispute and for payment of mesne profits and costs
which the petitioners might get in appeal;
(ii) to restrain the respondents from
transferring the lands in dispute or creating any charge on the said 110 lands
pending the decision of the appeal in this Hon'ble Court;
(iii) to send for the record of the case and
get the record printed under the supervision of this Hon'ble Court;
(iv) to order an early hearing of the case.
Prayers nos. (i) and (ii) appear to have been
made in view of r. 5 which provides that nothing in the rules shall be deemed
to limit or otherwise affect the inherent powers of the Court to make such
orders as may be necessary for the ends of justice or to prevent abuse of the
process of the Court.
The respondents-decree holders have obtained
possession of the land in suit, in execution of the decree in their favour. The
petitioners did not take any action under 0.
XLV, r. 13 (2), Civil Procedure Code, at the
time the respondents-decree holders applied for execution. If they had applied
to the High Court for the stay of execution, the High Court could have either
allowed execution on taking security from the respondents for the due
performance of any order which this Court might have made on the appeal or
might have stayed the execution of the decree on taking security from the
petitioners-appellants for the due per- formance of the decree appealed from or
of any decree or order which this Court might make on the appeal. The question
arises whether, after the decree has been executed and the decree-holders have
been put in possession by the Court, this Court can put the respondents-decree
holders to terms and direct them to furnish security for their delivering
possession of the land in dispute and for payment of mesne profits, if the
appeal succeeds and whether the Court can restrain the respondents-decree
holders from transferring the lands in dispute, pending the decision of the
appeal in this Court.
A notice of this petition was served on the
respondents decree-holders, but they did not put in appearance.
Mr. Naunit Lal, for the petitioners, has
referred us to some cases and to the provisions of the Code of Civil Procedure,
in this connection. Reliance is chiefly placed on the case of Mst.
Jariutool-Butool v. Mst. Hoseinee Begum(1) which was followed by the Madras
High Court in Narayanan Chetti v.
Arunachallam Chetti(2) and by the Bombay High
Court in Khushaldas Gokuldas v. Chimanlal Kalidas(8) in a case which came
before it after the enactment of the Code in 1908. In the Privy Council case,
the Privy Council expressed the opinion that the (1) 10 M.I.A. 196.
(2) I.L.R. 19 Mad. 140.
(3) I.L.R. 50 Bom. 453.
111 Sadar Dewani Adalat was competent to
require the decree- holder to furnish the security or otherwise to provide for
the protection and security of the property in question pending the appeal,
notwithstanding that execution had issued before the appeal was admitted. Their
Lordships of the Privy Council did not express themselves with respect to the
reasons for the view and simply stated that they had felt some difficulty in
dealing with the case, but on examining the Regulations and considering the
nature of the case, they were of opinion that an order might be made upon the
application. The Regulations referred to in the submissions before their
Lordships were the Bengal Regulation XVI of 1797, Bengal Regulation XIII of
1808, section II, clause (3) and Bengal Regulation V of 1798, sections V and
VI. Section 11 of the Bengal Regulation XVI of 1797 provided for persons
desirous of appealing from a judgment of Sadar Dewani Adalat to the
King-in-Council to present their petition of appeal to the court of Sadar
Dewani Adalat which was empowered to admit the appeal and proceed upon it as
directed in the following sections of that Regulation, under the several
restrictions therein prescribed. Section IV of the Regulation provided :
"In cases of appeal to his
Majesty-in-Council, the court of Sudder Dewanny Adawlut may either order the
judgment passed by them to be carried into execution, taking sufficient
security from the party in whose favour the same may be passed for the due
performance of such order or decree as his Majesty, his heirs or successors,
shall think fit to make on the appeal, or to suspend the execution of their
judgment during the appeal, taking the like security in the latter case from
the party left in possession of the, property adjudged against him." We
find nothing in these provisions which empowered the Court of Sadar Dewani
Adalat to demand security from the respondent decree holders or to restrain
them from transferring any property over which they had obtained possession in
execution of their decree before an appeal was taken to the Privy Council.
Section TV, however, directed the Sadar
Dewani Adalat to allow the execution of the decree on taking sufficient
security from the decree-holder. In the case before the Privy Council no such
security had been taken and therefore it may be said that the Court was held to
be competent to cover up its default by ordering the security to be furnished
by the decree-holders even after the decree had been executed. Bengal
Regulation XIII of 1808 112 dealt with the procedure in cases which were
appealable to the Court of Sadar Dewani Adalat and could not possibly have said
anything in connection with the appeals to the Privy Council from the orders of
the Sadar Dewani Adalat. Section V of Bengal Regulation V of 1798 provided for
the applicability of the principles of the rules contained in ss. III and IV to
cases in which the possession of property was ordered to be transferred by the
decree of any court of justice and from which decree an appeal might be pending
in a superior court including his Majesty-in-Council. Section III of the
Regulation empowered the courts of appeal to require further security during
appeals if the security already taken from the appellant for the stay of
execution of the decree be found to be insufficient and in case of the failure
of the appellant to furnish further security to allow the execution of the
decree, on taking requisite security from the respondent. Section IV of the
Regulation made the transfers by the appellant, pending the appeal, to be null
We do not see how these provisions of ss.
111, IV and V of Regulation V of 1798 could have been any guide in the matter
before the Privy Council. Section VI of this Regulation provides for the
attachment of the property in case neither of the parties were able to furnish
security. This provision, again, could not have been of any help in determining
the question whether the High Court could require the decree-holders to furnish
security after the decree had been executed.
Order XLV, C.P.C., deals with matters in
connection with appeals to this Court. Rule 13 deals with the powers of the
Court whose decree is under appeal, during the pendency of that appeal, and
"13. (1) Notwithstanding the grant of a
certificate for the admission of any appeal, the decree appealed from shall be
unconditionally executed, unless the Court otherwise directs.
(2) The Court may, if it thinks fit, one
special cause shown by any party interested in the suit, or otherwise appearing
to the Court,- (a) impound any movable property in dispute or any part thereof,
or (b) allow the decree appealed from to be executed, taking such security from
the respondent, as the Court thinks fit for the, due performance of any order
which the Supreme Court may make on the appeal, or 113 (c) stay the execution
of the decree appealed from, taking such security from the appellant as the
Court thinks fit for the due performance of the decree appealed from, or of any
decree or order which the Supreme Court may make on the appeal, or (d) place
any party seeking the assistance of the Court under such conditions or give
such other direction respecting the subject- matter of the appeal, as it thinks
fit, by the appointment of a receiver or otherwise,." It is clear from
sub-r. (1) that unless the Court otherwise directs the decree has to be
Naturally, directions of the Court must be
given before the execution of the decree. If no directions are given, the
execution of the decree is unconditional, which means that the decree-holder
executes the decree without any conditions attached and, after executing the
decree, can deal with the property he has obtained on such execution, in such
manner as the law allows him to deal with it. Sub-r. (2) lays down the
circumstances in which the Court can give directions with respect to the
subject matter of the suit, including the execution of, the decree. Clauses (b)
and (c) provide respectively that security may be taken from the respondent for
the execution of the decree and that the execution of the decree may be stayed
on taking security from the appellant for the due performance of any decree which
this Court might make on appeal. Such a direction for security for the due
performance of the order eventually passed by this Court is to be given when
the Court is dealing with the question whether the execution of the decree be
allowed or be stayed. The sub-rule does not empower the court to give such a
direction subsequent to the execution of the decree.
Even the giving of such directions, when
dealing with an application for execution, is dependent on the satisfaction of
the court that some special cause exists for giving those directions. The
provisions of r. 13 emphasize that the decree-holder has, ordinarily, full
right to execute the decree unless, on special cause being shown, the court
orders him to furnish the security contemplated by cl. (b) of sub-r. (2). Rule
14 provides for the increase of the security furnished by either party when it
is found to be inadequate. If the appellant fails to deposit the additional
security ordered, the decree is to be executed and if it is the decree-holder respondent
who defaults to furnish the additional security, the court can stay the further
execution of the decree and restore the parties to the position in which they
respectively were when 114 the security which appeared inadequate was furnished
or give such directions respecting the subject-matter of the appeal as it
thought fit. The rule comes into play only when security had been furnished in
the first instance by the decree-holder-respondent or by the judgment
debtor-appellant and does not deal with cases where execution had been allowed
by the Court without imposing any condition. The legislature could have
provided in this ,rule or any other rule for the court demanding security
afresh if circumstances came into existence during the pendency of the appeal
providing justification for the demand of security from the
decree-holder-respondent who had executed his decree. It does not so provide.
So far we have been dealing with the powers
of the High Court and the courts from whose orders, appeals, be pending in this
Court. We have not been referred to any decision of this Court in which this
Court had ordered any decree-holder to furnish security for the due performance
of the decree that might be passed by this Court when the decree-holder had
already executed his decree. Nor have we been referred to any provision of law
dealing with this question. Order XX, r.1, Supreme Court Rules however deals
with the question of staying the execution of a decree and reads :
"The filing of an appeal shall not
prevent execution of the decree or order appealed against but the Court, may,
subject to such terms and conditions as it may think fit to impose, order a
stay of execution of the decree or order, or order a stay of proceedings, in
any case under appeal to the Court." There is no rule which provides for
this Court's giving directions in connection with the execution of the decree.
In fact, no such occasion can arise as the
decree-holder is free to execute his decree and the powers of the court whose
decree is under appeal, in correction with the execution application, are laid
down in 0. XLV, of the Code.
Order XLV, r. 5, of the Supreme Court Rules,
simply provides that the inherent powers of this Court, to make necessary
orders to meet the ends of justice or to prevent abuse of the process of the
Court, are not affected by the rules.
Mr. Naunit Lal has not urged that the reliefs
prayed for with respect to the demanding of the security from the respondents
or restraining them from transferring the property, were to be granted in the
exercise of the inherent powers of this Court. The existence of such an
inherent power would be a matter of grave doubt when the Code 115 sufficiently
deals with the right of the decree-holder to execute the decree and the powers
of the High Court to give directions in connection with such execution. No
occasion for the exercise of any inherent power can arise when the High Court
itself does not give any such directions and had not been asked by the
judgment-debtor appellant to stay the execution of the decree. To exercise any
such inherent power would be not for the prevention of the abuse of the process
of the Court but may be to encourage it inasmuch as the judgment-debtor who had
been in default in taking necessary action at the proper time would be
encouraged to ask for that action after the execution of the decree and during
the pendency of the appeal in this Court. Law contemplates transfers by a party
pending litigation, does not prohibit them but makes them subject to the result
of the litigation. To pass orders restraining a party in possession delivered
by the Court cannot, prima facie, be in the interests of justice.
We are therefore of opinion that the
aforesaid reliefs cannot be granted after the decree-holders had been put in
possession of the property in suit in due execution of their decree. We may
note that the failure of the appellants to obtain such reliefs from this Court
need not necessarily prejudice them in case they succeed in the appeal. Any
transfers of the property in suit made by the respondents- decree holders
during the pendency of the appeal would be subject to the law of his pendens.
The appellants would be entitled to recover such mesne profits, as the law
allows from the respondents for the - period of their possession.
We therefore reject this application with
respect to the reliefs mentioned in clauses (i) and (ii) of para 11 of the
We have not considered whether any other
relief, for the protection of the interests of the petitioners-appellants, can
be granted, as no other relief in that regard had been sought.
With respect to the prayer in clause (iii),
we order that the record of the case be sent for and the papers for use of this
Court be printed under the supervision of the Registrar.
With regard to the prayer in clause (iv), the
petitioners appellants can take proper steps after the printing of the record.
Prayers 1 and 2 of -the petition rejected.