24 August 1964
Supreme Court







DATE OF JUDGMENT: 24/08/1964


CITATION:  1965 AIR  615            1965 SCR  (1) 109

ACT: Supreme  Court  Rules, 1950, 0. XLV, r.  5-Inherent  powers- Putting respondent in Supreme Court on terms-Whether in  the interests of justice.

HEADNOTE: 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].

JUDGMENT: 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 1960. 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 and void. 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 reads :               "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  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 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 application. 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. 116