# DEO CHAND v. smv RAM

- **Citation:** [1965] 1 S.C.R. 109
- **Court:** Supreme Court of India
- **Decided:** 1964-08-24
- **Case number:** Civil Miscellaneous Petition No. 1223 of 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/deo-chand-v-smv-ram-3287
- **Pages:** 7

## Headnote

~1
. ,,.
A
DEO CHAND
v.
smv RAM
August 24, 1964
B
(RAGHUBAR DAYAL, J. R. MUDHOLKAR AND S. M. S!KRI IJ.)
Supreme Court Rules, 1950, 0. XLV, r. 5-lnherent powers-Putting
re1por,dent. in Supreme Court on terms-Whether in the interestt of justice.
Pending appeal in the Supreme Court, the respondents (decree holders)
obtained possession of the suit property in execution of the decree in their
·favour. The appellants did not take any action for stay or directions
C
under 0. XLV, r. 13(2) of the Code of Civil Procedure (Act V of 1908Y.
Later, they applied to the Supreme Court to put the respondent on terms,
invoking the inherent powers of that Court under 0. XLV; r. 5 of the
Suprea11> Court Rules.
HELD : The Supreme Court cannot exercise any inherent powers to
put the respondents on terms, or to direct them to furnish security for tho>
delivery of the suit property or for the payment of mesne profits, or to
D
restrain them from transferring the suit property. [l 15B-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 Jaw of /is pendens, to pass
any orders restraining a party in posspsion of property delivered by Court,
E
cannot be in the interests of justice. [l 15C-E[.
F
CML 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 1960.
Naunit Lal, for the petitioners.
The respondent did not appear.
ORDER
This application purports to be orte under 0. XLV, rr. 2 and
G 5 of the Supreme Court Rules and contains the following prayers:-
·H
USup./64-8
( i) to direet the respondents to furnish security for
delivering possession of the lands in dispute and fOl"
payment of mesne profits and costs which the petitjoners might get in appeal;
(ii) t~ r~:;train the respondents from transferring the
lands'>in dispute or creating any charge on the said
110
SUPREME COURT REPORTS
(1965) I S.C.R.
lands pending the decision of the appeal in this
A
Hon'ble Court;
(iii) to send for the record of the case and get the nx:ord
\;
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 B
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
C
petitioners did not take any action under 0. XLV, r. 13(2), Civil
Procedure Code, at
the time the respondents-decree holden
applied for execution. H they had applied to the High Court for
the stay of execution, the High Court could have either allowed
execution on taldng security from the respondents for the duo D
per(ormance of any order which this Court might have made ou
the appeal or might have stayed the execution of the decree on
taking security from the petitioners-appellants for the due p«-
formance of the decree appealed from or of any decree or ordec
which this Court might make on the appeal. The question arises
whether, after the decree has been executed and the decree-holders
E
have been put in possession by the Court, this Court can put the
respondents-decree holders to terms and direct them to furniah
llCCl!rity for their delivering possession of the land in dispute im,d
for payment of mesne profits, if the appeal succeeds and whethec
the Court can restrain the respondents-decree· holders from transferring the lands in dispute, pending the decision of the appeal in F
this Court.
A notice of t

## Text

~1
. ,,.
A
DEO CHAND
v.
smv RAM
August 24, 1964
B
(RAGHUBAR DAYAL, J. R. MUDHOLKAR AND S. M. S!KRI IJ.)
Supreme Court Rules, 1950, 0. XLV, r. 5-lnherent powers-Putting
re1por,dent. in Supreme Court on terms-Whether in the interestt of justice.
Pending appeal in the Supreme Court, the respondents (decree holders)
obtained possession of the suit property in execution of the decree in their
·favour. The appellants did not take any action for stay or directions
C
under 0. XLV, r. 13(2) of the Code of Civil Procedure (Act V of 1908Y.
Later, they applied to the Supreme Court to put the respondent on terms,
invoking the inherent powers of that Court under 0. XLV; r. 5 of the
Suprea11> Court Rules.
HELD : The Supreme Court cannot exercise any inherent powers to
put the respondents on terms, or to direct them to furnish security for tho>
delivery of the suit property or for the payment of mesne profits, or to
D
restrain them from transferring the suit property. [l 15B-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 Jaw of /is pendens, to pass
any orders restraining a party in posspsion of property delivered by Court,
E
cannot be in the interests of justice. [l 15C-E[.
F
CML 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 1960.
Naunit Lal, for the petitioners.
The respondent did not appear.
ORDER
This application purports to be orte under 0. XLV, rr. 2 and
G 5 of the Supreme Court Rules and contains the following prayers:-
·H
USup./64-8
( i) to direet the respondents to furnish security for
delivering possession of the lands in dispute and fOl"
payment of mesne profits and costs which the petitjoners might get in appeal;
(ii) t~ r~:;train the respondents from transferring the
lands'>in dispute or creating any charge on the said
110
SUPREME COURT REPORTS
(1965) I S.C.R.
lands pending the decision of the appeal in this
A
Hon'ble Court;
(iii) to send for the record of the case and get the nx:ord
\;
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 B
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
C
petitioners did not take any action under 0. XLV, r. 13(2), Civil
Procedure Code, at
the time the respondents-decree holden
applied for execution. H they had applied to the High Court for
the stay of execution, the High Court could have either allowed
execution on taldng security from the respondents for the duo D
per(ormance of any order which this Court might have made ou
the appeal or might have stayed the execution of the decree on
taking security from the petitioners-appellants for the due p«-
formance of the decree appealed from or of any decree or ordec
which this Court might make on the appeal. The question arises
whether, after the decree has been executed and the decree-holders
E
have been put in possession by the Court, this Court can put the
respondents-decree holders to terms and direct them to furniah
llCCl!rity for their delivering possession of the land in dispute im,d
for payment of mesne profits, if the appeal succeeds and whethec
the Court can restrain the respondents-decree· holders from transferring the lands in dispute, pending the decision of the appeal in F
this Court.
A notice of this petition was served on the respondents decreeholders, but they did not put in appearance.
Mr. Naunit Lal, for the petitioners, ha~ referred us to aome
cases and to the provisions of the Ccide of Civil Procedure, in this
connection. Reliance is chiefly placed on the case of Mst. lariutG
ool-Butool v. Mst. Hoseinee Begum(') which was followed by
the Madras High Court in Narayanan Chetti v. Arunachallam
Cherti(1 ) and by the Bombay High Court in Khushaldas Gokuldas v. Chimanlal Kalidas(1) in a case which came before it after
the enactment of the Code in 1908.
Jn the Privy Council case,
H
the
Privy
Council
expressed
the opinion
that
the
(I) 10 M.l.A. 196.
(3) I.L.R. '° Bom. 4,,.
(2) I.LR. 19 Mid. 140.
DEO CHAND V. SHIV RAM
111
A 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
B stated that they had felt some difficulty in de~g 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 be-'
fore their Lordships were the Bengal Regulation XVI of 1797,
Bengal Regulation XIII of 1808, section II, clause (3) and Bengal
C Regulation V of 1798, sections V and VI.
Section II of the
Bengal Regulation XVI of 1797 provided for persons desirous of
appealing from a judgment of Sadar Dewani Adalat to the King-inCouncil to present their petition of appeal to the court of Sadar
Dewani Adalat which was empowered to admit the appeal and
D proceed upon it as directed in the following sections of that Regulation, under the several res;rictions therein prescribed.
Section
IV of the Regulation provided :
E
F
"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
G over which they had obtained possession in execution of their
decree before an appeal was taken to the Privy Council.
Section IV, 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
secnrity had been taken and therefore· it• may be said that the
H 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: Bene:al Regulation XJII of J 808
lU
SUPREME COURT REPORTS
[1965] I S.C.R.
dealt with the procedure in cases which were appealable to the
A
Coon of Sadar Dcwani Adalat and could not possibly have said
anylhing in connection with the appeals to lhe Privy Council from
the orders of the Sadar Dewani AdalaL
Section V of Bengal
Regulation V of 1798 provided for the applicability of the principies of the rules contained in ss. Ill and IV to cases in which the
possession of property was ordered to be transferred by the decree
B
of any court of justice and from which decree an appeal might be
pending in a superior court including bis 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 fo case of the failure of the appellant to
C
furnish further security to allow the execution of the decree, on
talcing requisite security from the respondent.
Section IV of
the Regulation made the transfers by the appellant. pending the
appeal, to be null and void.
We do not see how these provisions of ss. Ill, IV and V
D
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 !he
parties were able to furnish
security.
This provision.
again,
could not have been of any help in detennining the question
whether the High Court could require lhe decree-holders to
E
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 reads :
"13. (I) Notwithstanding the grant of a certificate for the
admission of any appeal, the decree appealed from
shall be unconditionally executed, unless the Court
otherwise direct~.
F
(2) The Court may, if it thinks fit, on special cause
shown by any party interested in the suit, or otherG
wise 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 re5pondent.
as
H
the Court thinks fit for the due perfonnance oC
any order which the Supreme Court may mm
on the appeal, or
..
A
B
DEO CHAND V. SHIV RAM
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.'"
c It is clear from sub-r. ( 1) that unless the Court otherwise directs
the deeree has to'be unconditionally executed.
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 uncoric
ditiomil, which means that the decree-holder executes the decre,e
without any conditions attached and, after executing the decree,
D 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 res.Peet to the subject matter of the suit, including the execution of the decree.
Clauses (b) and ( c) pro:Vide
respectively
that security may be taken .from the resjiondent for the eitecution
E 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 c(pe 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
F
allowed or be stayed. · The sub-rule does not empower the court
to give such a. direction s.ubsequent to the execution of the decree.
Even _the giving of such · directions, when, dealing with an
application for execution, is dependent on the sat~action of the
court that some special cause exists for giving those directions.
The provisiOns of r. 13 emphasize that the decree-holder has,
G ord,inarily, full right to exeeute 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 decreoH
holder,respondent who defaults to ftlrnish ihe 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
IH
SUPREME COURT REPORTS
[1965] l S.C.R.
the security which appeared inadequate was furnished or give
A
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 kgislature could have provided in this
B
rvle or any other rule for the court demanding security afresh if
circumstance.' 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 for we have been dealing with the powers of the High Court
cind the courts from whose orders, appeals, be pending in this
Court.
We have not .been referred to any decision of this Court
c
in which this Court had ordered any decree-holder to
furnish
,e<,·urity for the due performance of the decree that might be
passed by this Court when the decree-holder had already execuied
o
his decree.
Nor have we IY'..cn referred to any provision of Jaw
dealing with this question. Order XX, r. I, Supreme Court Ru~,
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,
E
.suhject to such term.' 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
F
in connection with the execution of the decree.
Jn 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 connection with the execution application, are laid down
in
0. XLV, of the Code.
Order XLV, r. 5, of the Supreme Court Rules, simply provides
G
that the inherent power.; 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 oot
urged that the reliefs prayed for with respect to the demanding
of tho security from the respondents or r~.straining them from
transferring the property, were to be granted in the exercise of H
the inherent powers of this Court.
The existence of such an
inherent power would be a matter of grave doubt when the Code
•
DEO CHAND V. SHIV RAM
115
A 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 tho exercise
of any inherent p0wer 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
B ctercise any such inherent power would be not for the preventioll
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
C
transfers by a party pending litigation, does not prohibit them
but makes them subject to the result of the litigation. To pMS
orders restraining a party in possession delivered by the Court
cannot, prima facie, be in the interests of justice.
· We arc therefore of opinion that the aforesaid reliefs cannot
D
be granted after the decree-holders had been put in po~ession 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
bJ the respondents-decree holders during the pendency of the
E
appeal would be subject to the law of /is 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
mClltioned in clauses (i) and (ii) of para 11 of the applicatioo.
We have not considered whether any other relief, for the proF
toction 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.
G
With rega:d to the prayer in clause (iv), the petitionersappollants can take proper steps after the printing of the record.
Prayers 1 and 2 of the petition reiected.