# XXXlll Cal. 227, Llakat Mlan v. Padampat Slnghania

- **Citation:** [1967] 3 S.C.R. 84
- **Court:** Supreme Court of India
- **Decided:** 1967-03-02
- **Case number:** Civil Appeal No. 1938 of 1966
- **Bench:** K. N. Wanchoo, R. S. Bachawat, Y. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/xxxlll-cal-227-llakat-mlan-v-padampat-slnghania-4030
- **Pages:** 8

## Headnote

Stay order-When takes effect.
While an application
of the r""pondent-landlord for penn1ss1on
to
sue for ejectment of his tenant, the appellant, under the U.P. (Temporary) Rent Control Act was pending before a Magistrate, the appellant
applied for the transfer of proceedings relating to permission from that
C
Magistrate's Court.
On that transfer application an order was passed
staying further proceedings. This stay order was not cqmmunicated to
the Magistrate with the result that the Magistrate granted permission to
sue. The respondent filed the suit for ejectment where the appellant raised the plea that the permission granted subsequent to stay order was. a
nullity as the Magistrate dealing with the matter h11d lost his jurisdiclfon
thereunder. The trial court accepted the appellant's plea, but High Court
in appeal rejected it,
In appeal to this court :
D
HELD : The appeal must be dismissed.
An order of stay in an execution matter is in the nature of a prohi·
bitory order and is addressed to the court that is carrying out e<ecution.
lt is not of the same nature as an order allowing an appeal and quashing execution proceedings. That kind of order takes effect immediately
it is passed, for such an order takes away the very jurisdiction of the
E
court executing the decree as there is nothing left to execute thereafter.
But a mere order of stay of execution does not take away the jurisdic~
lion of the court.
All that it does is to prohibit lhe court from proceedings with the execution further, and the court, unless it knows of
the
order cannot be expected to carry it out.
As soon as a stay order is
withdrawn, the
executing court is entitled to carry Qn execution
and
there is no question of fresh conferment of jurisdiction by the fact that
the stay order has been withdrawn.
The
jurisdiction of the court
is
F
there all along.
In effect a stay order is more or less in the same position as an order of injunction with one difference.
An order of injunction is generalty issued to a party and it is forbidden from doing certain
acts. [870-880, HJ
The court may receive knowledge either on receipt of an order of
stay from the court that passed it or 1hrou~h one party or the
other
supported by an affidavit or in other way. [89B-F]
G
The court can always act under s. 151 C.P.C. and ·set aside steps
taken between the time the stay order was passed and the time it was
brought to its notice, if that is necessary in the ends of justice and the
party concerned asks it to do so. [90E]
What have heen said about execution proceedin_gs applies with greater
force to stay orders passed in transfer applications. [90H)
The above principle may not be applicable where stay is made
for
ministerial officers. [910)
o4
H
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c
D
E
F
G
H
MULllAJ v. llAGHONATHJl (Wanchoo, I.)
as.
Besmswarl Chowdhura11y v. Horro Sunder Moz;madar
(1896-97) 1
C.W.N. 226, Hukum Chand Bold v. Kamalanand Sillgh, l.L.R. (1906)
XXXlll Cal. 227, Llakat Mlan v. Padampat Slnghania,
A.I.R.
1951
Pat. 130, Din Dyal Lakhl Ram v. Union of India, A.I.R.
1954 Punj.
46 and Kasarlbada Venkatachalpati Rao v. Maddlpatla Kameshwaramma,
l.L.R. (1918) Xl.1 Mad. 151, approved.
Hukum Chand Bold v. Kamalanand Singh, l.L.R. (1906)
XXXlll
Cal. 227 and L. Parsotam Saran v. B. Barhma Nand,
A.LR. 1927 All.
401, disapproved.

## Text

MULRAJ
A
.V·
MURTI RAGHONA TllJI MAHARAJ
March 2, 1967
[K. N. WANCHOO, R. S. BACHAWAT AND .Y. BHARGAVA, JJ.]
Stay order-When takes effect.
While an application
of the r""pondent-landlord for penn1ss1on
to
sue for ejectment of his tenant, the appellant, under the U.P. (Temporary) Rent Control Act was pending before a Magistrate, the appellant
applied for the transfer of proceedings relating to permission from that
C
Magistrate's Court.
On that transfer application an order was passed
staying further proceedings. This stay order was not cqmmunicated to
the Magistrate with the result that the Magistrate granted permission to
sue. The respondent filed the suit for ejectment where the appellant raised the plea that the permission granted subsequent to stay order was. a
nullity as the Magistrate dealing with the matter h11d lost his jurisdiclfon
thereunder. The trial court accepted the appellant's plea, but High Court
in appeal rejected it,
In appeal to this court :
D
HELD : The appeal must be dismissed.
An order of stay in an execution matter is in the nature of a prohi·
bitory order and is addressed to the court that is carrying out e<ecution.
lt is not of the same nature as an order allowing an appeal and quashing execution proceedings. That kind of order takes effect immediately
it is passed, for such an order takes away the very jurisdiction of the
E
court executing the decree as there is nothing left to execute thereafter.
But a mere order of stay of execution does not take away the jurisdic~
lion of the court.
All that it does is to prohibit lhe court from proceedings with the execution further, and the court, unless it knows of
the
order cannot be expected to carry it out.
As soon as a stay order is
withdrawn, the
executing court is entitled to carry Qn execution
and
there is no question of fresh conferment of jurisdiction by the fact that
the stay order has been withdrawn.
The
jurisdiction of the court
is
F
there all along.
In effect a stay order is more or less in the same position as an order of injunction with one difference.
An order of injunction is generalty issued to a party and it is forbidden from doing certain
acts. [870-880, HJ
The court may receive knowledge either on receipt of an order of
stay from the court that passed it or 1hrou~h one party or the
other
supported by an affidavit or in other way. [89B-F]
G
The court can always act under s. 151 C.P.C. and ·set aside steps
taken between the time the stay order was passed and the time it was
brought to its notice, if that is necessary in the ends of justice and the
party concerned asks it to do so. [90E]
What have heen said about execution proceedin_gs applies with greater
force to stay orders passed in transfer applications. [90H)
The above principle may not be applicable where stay is made
for
ministerial officers. [910)
o4
H
B
c
D
E
F
G
H
MULllAJ v. llAGHONATHJl (Wanchoo, I.)
as.
Besmswarl Chowdhura11y v. Horro Sunder Moz;madar
(1896-97) 1
C.W.N. 226, Hukum Chand Bold v. Kamalanand Sillgh, l.L.R. (1906)
XXXlll Cal. 227, Llakat Mlan v. Padampat Slnghania,
A.I.R.
1951
Pat. 130, Din Dyal Lakhl Ram v. Union of India, A.I.R.
1954 Punj.
46 and Kasarlbada Venkatachalpati Rao v. Maddlpatla Kameshwaramma,
l.L.R. (1918) Xl.1 Mad. 151, approved.
Hukum Chand Bold v. Kamalanand Singh, l.L.R. (1906)
XXXlll
Cal. 227 and L. Parsotam Saran v. B. Barhma Nand,
A.LR. 1927 All.
401, disapproved.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1938 of
1966.
Appeal by special leave from the judgment and order dated.
April 20, 1966 of the Allahabad High Court in Second Appeal
No. 2648 of 1964.
Yogeshwar Prasad and S .. S. Khanduja, for the appellant.
Hardev Singh, for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J.
This is an appeal by special leave against the
judgment of the High Court of Allahabad. Brief facts necessary
for present purposes are these.
The respondent filed a suit
against the appellant for eviction from a shop whi~h the appellant
had taken on monthly rent from the respondent.
The suit was
filed after permission had been obtained under the U.P. (Temporary) Control of Rent and Eviction Act, No. III of 1947, {hereinafter referred to as the Act), in the court of the Munsif in Jhansi.
It was contested by the appellant and one of the points raised
before the trial court was that as the permission to sue had been
granted at a time when there was a stay order, th.e Magistrate
granting the permission had no jurisdiction to do so and therefore
the permission was a nullity.
On that basis it was contended
that the suit should fail for no suit could continue under the Act
without such permission.
The Mun~if dismissed the suit.
The respondent then went in
appeal.
The appeal court upheld the order of the Munsif taking
the view that the permission granted after the stay order had been
passed w~s a nullity.
The respondent then came in second appeal
to the High Court,
and
the only point con.sidered
there
was
whether the permission granted by the
Magistrate
was a nullity or not.
It may be mentioned that though
th~ s~ay ord~r had been pas.sed on September 2 9, 1961 by the
D1stnct Magistrate, the Magistrate who was dealing with the
matt~r ?f permission, had no knowledge of it when he granted the
permission on October 4, 1961.
The question that arose before
the High Court therefore was whether the permission granted in
86
SUPREME COURT REPORTS
(1967) 3 S.C.R.
these cireurnstances could be said to be a nullity. The High Court
held. that the stay order could not and did not take away the jurisdiction of the Magistrate from the moment it was passed and that
as th~ Magistrate had no knowledge of or information about the
stay order when he granted the permission on October 4, 1961,
that permission was witl'l jurisdiction and the suit would therefor~
be maintainable.
As no other point was apparently in dispute in
the High Court it allowed the appeal and granted a decree for
ejectment and . reni in favour of the respondent.
The appellant
then obtained special leave from this Court, as there is some conflict of opinion between the High Courts on this question.
As we have already indicated, the facts on the question raised
before us are not in dispute. When the application for permission
was pending before Sri Nigam, Magistrate I Class, who had jurisdiction to deal with that application by virtue of the authority
delegated to him by the District Magistrate, it appears that the
appellant applied for the transfer of proceedings relating to per·
mission from. Sri Nigam's court.
On that transfer application, the
District Magistrate passed an order staying further proceedings till
the disposal of the transfer application.
This order was not communicated to the Magistrate concerned by the office of the District
Magistrate:
Nor does it appear that the appellant infom1ed the
Magistrate of the order of stay with the result that on October 4,
196 l , the Magistrate gave permission to the respondent to file a
suit for eviction.
When however the respondent filed the suit
in the Munsif's court, the appellant raised the question that as a
stay order had been passed on September 29, 1961, the permission granted on October 4, 1961, was a nullity as the Magistrat~
dealing with the ma:ter had lost his juri,diction thereunder.
There has been difference of opinion amopg the High Court'
on the question of the effect of a stay order, particularly with
reference to execution proceedings.
The High Courts of Calcutta.
Patna and Punjab have held that in such a case the stay order
takes effect from the moment it is passed and the fact that the
court executing the decree has no knowledge of it makes no difference and all proceedings taken in execution after the stay order
has been passed are without jurisdiction. · On the other hand, th~
High Courts of Madras and Kerala have taken the view that the
executing court does not lose its jurisdiction from the moment
, the stay order is passed and that the order bein~ in the nature of
a prohibitory order the court carrying on execu~ton does not l<Be
its jurisdiction to do so till the order comes to .its knowledge amt
that proceedings taken in between are n.ot a null~ty. 'f\'e A1Iahab:,1d
Hi~h Court seems to have taken an mtermedtate view and .h"s
heid that where rights of third parties like a stra1'.~cr
;~uctton
purchaser have intervened the .fact th~t the executmg court had
no knowledge would protect third parties.
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MULRAJ v. RAGHONATHJI (Wanchoo, J.)
87
The earliest case on the point is Bessesswari Chowdh1,ran.v v.
Horro Sunder Mozmadar a11d oihers(' ). In that case a Division
Bench of 'the Calcutta High Court Ji.el<l that "an order staying
execution of a jecree against which an appeal is pending is in the
nature of a: prohibitory order, and as such would only take effect
when communicate~. If a property is sold before such an order
is communicated to the court holding the sale, such sale is not
rnid and cannot be treated as a nullity". In Hukum Chand Bo:.r
v. Kamalanand S!ngh('), another Division Bench of the same High.
Court dissented from the view taken in BPssesswari Chowdlwrany's
case(') and held that an order of stay takes effect from
the
moment it is passecl and the knowledge of the court to which it
i> ~dd~essed is immaterial and from the moment the order is passed
the court to which the application is made for execution has n.i
authority to execute it. It is these two cases of the Calcutta High
Court which are the pasis of .. the decisions of other High Courts.
Some High Courts, as l\lready indicated, have accepted the view
in Bessesswari Chdwdhurany's case(') while other High Courts
have followed the view taken in Hukum Chand Boid's(') case.
Before we consider the question raised before us, we may indicate the leading cases on the two sides briefly. The Patna High
Court in Li11kat Mian v. Padampat Singhania( 8 ) and the Punjab
High Court in Din Dayal Lakhi Ram v. Un!on of India(') follow
Hukum Chand Boid's(') case.
The Madras High Court in Kasaribada Venkatachalpati Rao v. Maddipatla Kameshwaramma(')
follows Bessesswari Chowdhurany's case('). The Kerala High
Court in Cheeramparambila/ikutty v. Thalavanaparambila/ikutty(")
also follows Bessesswari Chowdhurany's case(').
It is unneces·
sary to refer to other cases of these courts which were cited before
us for they follow the view taken in these leading cases.
The Allahabad High Court in L. Parsotam Saran v. B.
B"rhma Nand('), as already indicated, took an intermediate view
and held that where a third party's interest intervened. the stay
order does not nullify a sale in favour of a third party.
But where
only the parties to the execution proceedings were concerned it
followed the view taken in Hukum Chand Bald's case(').
We are of opinion that the view taken in Bessesswari ChoH'-
dhurany's case(') is the correct one.
An order of stay in' an
executien matter is in our opinion in the nature of
3
prohibitory order and is addressed to the court that is
carrying
(I) [1896-97) t C.W.N. 226.
(3) A.LR. 1951 P.11. 130.
(5) l.L.R. (t918) XL! Mad. ISi.
12) I.LR. [1906) XXXJJ[ Cal. 227.
(4) A.LR. 1954 Punj. 46.
(6) l.L.R. (196) Ker. 528.
(7) A.LR. 1927 All. 4Jl.
88
SUPllMB COURT 11.BPOR.TS
(1967) 3 S.CJ..
out e;i1.ecution. It is not of the same nature as an order allowin2
an appeal and quasliing execution proceedings. That kind o1
order takes effect immediately it is passed, for such an order takes
away the very jurisdiction of the court executing the decrco as
there is nothing left.,μ> execute thereafter.
But a mero order of
stay of execution does' not take away the jurisdiction of the court.
All that it does is to prohibit the court from proceeding with the
execution further, and the court unless it knows of the order
cannot be expected to carry it out. Therefore, till the order
comes to the knowledge of the court its jurisdiction to «8I'l'Y on
execution is not affected by a· stay order which must in the very
nature of things be treated to be a prohibitory order directing the
executing court which continues to have jurisdiction to stay its
hand till further orders.
It is clear that as soon .as a stay order
is withdrawn, the executing court is entitled to carry on execution
and ·there is no question of fresh conferment of jurisdiction by
the fact that the stay order has been withdrawn. The jurisdiction
of the court is there all along. ·The only ellect of the stay order
is to prohibit the executing court from proceeding further and
that can only take effect when the executing Court has knowledge
of the order.
The executing court may have knowledge of the
order on the order being communicated to it by tl).e court passing
the stay order or the executing court may be informed of the
order by one party or the other with an affidavit in support of the
information or in any other way.
As soon therefore as the executing court has come to know of the order either by communication from the court passing the stay' order or by an affidavit from
one party or the other or in any other way the executing court
cannot proceed further and if it does so it acts illegally. There
can be no doubt that no action for contempt can be taken against
an executing court, if it carries on execution in ignorance of the
order of stay and this shows the necessity of the knowledge of the
executing court before its jurisdiction can be affected by the order.
In effect therefore a stay order is more or less in the same position
as an order of injunction with one difference.
An order of injunction is generally issued to a party and it is forbidden from doing
certain acts.
It is well-settled that in such a case the party must
have knowledge of the injunction order before it could be penalised
for disobeying it. Further it is equally well-settled that the injunction order not being addressed to the court, if the court proceeds
in contravention of the injunction order, the proceedings are not
a nullity.
In the case of a stay order, as it is addressed to the
court and prohibits it from proceeding further, as soon as. the
court has knowledge of· the order it is bound to obey it and if
it does not it acts illegally, and all proceedings taken after the
knowledge ~f the order would be a nullity. . ~at !n our opinion
i~ the only difference between an order of miuncuon to a party
and an order of stay to a court. In both cases knowledge of the
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MULRAJ v. RAGHONATHJI (Wanchoo, J.)
89
party concerned or of the court is necessary before the prohibition
takes effect.
Take the case where a stay order has been passed
but it is never brought to the notice of the court, and the court
carries on proceedings in ignorance thereof.
It can hardly be said
that the court has lost jurisdiction because of some order of which
it has no knowledge.
This to our mind clearly follows from the
words of 0: XLI r. 5 of the Code of Civil Procedure which clearly
lays down that mere filing of an appeal does not operate as stay
of proceedings in execution, but the appellate court has the power
to stay the execution.
Obviously when the appellate court orders
stay of execution the order can have affect only when it is made
known to the executing court. We cannot agree that au order
staying execution is similar to an order allowing an appeal and
quashing execution proceedings.
In the case where the execution
proceeding is quashed, the order takes effect' immediately and there
1s nothing left to execute.
But where a stay order is passed,
execution still stands and can go on unless the court executing
the decree has knowledge of the stay order.
It is only when the
executing court has knowledge of the stay order that the court
must stay its hands and anything it does thereafter would be a
nullity so long as the stay order is in force.
It is argued that this view would introduce uncertainty inasmuch
as proceedings may go on and it may take sometime-whether long
or short-for the stay order to reach the court.
There is in our
E
opinion no question of uncertainty, even if we hold that the stay
order must come to the knowledge of the court to which it is
addressed before it takes effect. The court may receive knowledge
either on receipt of an order of stay from the court that passed
it or through one party or the other supported by an affidavit or
in any other way.
There is in our opinion no uncertainty by
reason of the fact that the court to which the stay order is addF
ressed must have knowledge of it before it takes effect for it can
always be proved that the court to which the 'stay order was addressed had knowledge of it and that is not a matter which should
really create any difficulty or uncertainty.
Once it is clear that
a stay order is in the nature of a prohibitory order, knowledge of
it by the court which is prohibited is essential be~ore the court
is deprived of the power to carry on the proceedings.
As was
G
pointed out in Ba~sesswari Chowdhurany's case('), "the appellate
court has nothing to do with the ~xecution of the de.cree; the
execution proceeds under the directJon of the c?urt which made
the decree and it has full authority to execute 1t:
An order of
s\ay does not undo anything which has been done: its utm~st affect
is to. stop further action in the direction of execut1011, but 1t would
H
only have that effect when it reached the court or person whose
duty it was to obey it."
(I) (l 896-97) I C. W. N. 226.
M4Sup. CI/67-7
90
SUPIUIMB COtaT llBPOllTS
[l~b7] 3 S.C.R.
As we have already indicated, an or<lcr of stay is as much a
prohibitory order as an injunction order and unl~ the court to
which it is addressed has knowledge of it, it cannot deprive that
court of the jurisdiction to proceed with the execution before it.
But there is one difference between an order of injunction and
an order of stay arising out of the fact that an injunction order
is usually passed against a party while a stay order is addressed
to the court.
As the stay order is addressed to the court, as soon
as the court has knowledge of it, it must stay its hand; if it does
not do so, it acts illegally.
Therefore, in the case of a stay order
as opposed to an order of injunction, as soon as the court has
knowledge of it, it must stay its hand and further proceedings are
illegal; but so long as the court has no knowledge of the stay order
it does not lose the jurisdiction to deal with the execution which
it has under the Code of Civil Procedure.
Though the court which is carrying on execution is not deprived of the jurisdiction the moment a stay order is passed, even
though it has no knowledge of it, this does not mean that when
the court gets knowledge of it, it is powerless to undo any pos·
siblc injustice that might have been caused to the party in whose
favour the stay order was passed during the period till the court
11as knowledge of the stay order.· We arc of opinion that s. lSl
of the Code of Civil Procedure would always be available to
the court executing the decree, for in such a case, when the
.stay order is brought to its notice it can always act under s. 151,
and set aside steps taken between the time the stay order was
passed and the time it y.'as brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to
do so.
Though, therefore, the court
executing
the
decree
cannot in our opinion be deprived of its jurisdiction to carry on
execution till it has knowledge of the stay order, the court has
the power in our ·view to set aside the proceedings taken between
the time when the stay order was passed and the time when it
was brought to its notice, if it is asked to do so and it considers
that it is necessary in the interests of justice that the interim
proceedings should be set aside.
But that can only be done by
the court which has taken the interim proceedings in the interest of justice under s. 151 of the Code of Civil Procedure
provided the order is brought to its knowledge and a prayer is
mllde to set aside the interim proceedings within a reasonable
time.
Otherwise the interim proceedings in our opinion are not
a nullity and in the absence of such exercise of power by the
court executing the decree under s. 151, they remain good for
all purposes. ·
What we have said about execution proceedings applies with
greater force to stay orders passed in transfer applications, as
in the present case.
Jn the case of execution proceedings at
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. MULR.\J \/, R.\GHONATHJI (Wanchoo, J.)
91
any rate there is an appeal in which a stay order is passed; the
transfer proceedings are collateral Jlroceedings and even though
the superior authority may have the power to stay it cannot
deprive the inferior authority having jurisdiction of that jurisdiction, unless the inferior authority is apprised of the order by
the superior authority. In the present case the order of stay
never came to the knowledge of the Magistrate concerned till
he gave the permission on October 4, 1961. Later on the
District Magistrate himself dismissed the transfer petition. The
order was not brought to the knowledge of the Magistrate concerned by the appellant at any time.
Nor did he ever apply
to the Magistrate to set aside the permission passed in ignorance
in the interest of justice. In these circumstances, the appellant
cannot challenge the permission as a nullity in the suit which
has been brought on the basis of that permission.
"'
We may, however, add that what we have said above refers
only to proceedings being carried on by courts or authorities
after the stay order has been passed and before they have knowledge of it.
But this may not apply in a ~ase where stay is made
for ministerial officers, as for example in the case of a ·court
asking a bailiff not to sell and the bailiff selling without knowledge of the order of the court prohibiting it to carry on the
sale.
The position in such a case may be diff!l.l"ent, but as to
that we express no final opinion in the present appeal.
The appeal therefore fails and is hereby dismissed with costs.
Y.P.
Appeal dismissed.