Decided on December 19,1972

Manjurani Das Appellant
Bibhuti Bhusan Paramanick Respondents

Referred Judgements :-



A.K. Sinha, J. - (1.)This Rule arises out of an appeal preferred against money decree passed in a suit for specific performance with alternative prayer for recovery of earnest money. The Petitioner's husband entered into a contract for sale of some of his immovable properties to the Respondent opposite party, but on the allegation that there was failure, on his part to perform the contract a suit was filed by the present, Respondent opposite party for specific performance of the contract with alternative prayer for recovery of the entire earnest money which, according to them, was Rs. 16,000. The trial Court granted the alternative relief and passed a decree for the amount claimed with costs. But the present Petitioner has preferred an appeal against this decree in this Court which is now pending.
(2.)The Respondent, in the meantime, has started execution of the case and attached some other immovable properties belonging to the present Petitioner who is the widow of the deceased Defendant in the suit for specific performance. Thereafter, these properties were put up to sale, but before the sale was held, the Petitioner obtained the present Rule and also an interim order staying all further proceedings in the execution case. The order passed by this Court in this Rule was duly communicated by the learned Advocate Mr. Halder, which as appears was produced before the executing Court with a petition, inter alia, for adjourning the sale. From the record of the trial Court, it appears that time was allowed till December 18, 1971, for producing the certified copy of the said order as passed by this Court and sale was stayed till that date. Then, on December 18, 1971, the present Petitioner made another application asking for two months' time to bring the stay order after it is made absolute by this Court. This application was, however, put up on December 20, 1971, for hearing, but as none appeared to move the petition it was rejected. The sale was ultimately held on December 22, 1971. The Rule and the interim order passed by this Court, however, reached the executing Court as it appears from its order dated January 24, 1972, sometime in the month of January and by order dated January 24, 1972, the confirmation of sale was stayed till further intimation from this Court.
(3.)When this Rule came up earlier for hearing we directed the learned trial Court to submit a report and send the original records of the execution case. It appears from the report that the facts indicated above have, not been denied but some explanation has been given by the executing Court stating that time was allowed on the judgment -debtor's prayer, but as she could not produce the certified copy of the interim order, the sale was ultimately held on December 22, 1971 and it is further submitted that the allegations made were 'totally baseless'. In our opinion, the entire procedure adopted by the trial Court was without jurisdiction and the sale was held in violation of the interim order passed by this Court staying all further proceedings. The learned trial Court should have by this time known the well -established principle of law regarding the communication of the interim order made by this Court to the Court below. An Advocate's letter communicating such interim order was sufficient for enabling the Court to stay further proceedings in the trial Court awaiting direct communication of the interim order from this Court or until further order that may be passed by this Court. As long back as 1912, in similar circumstances, by means of an Advocate's letter the order of this Court was communicated. Mookerjee J. in considering the effect of such a letter in a Bench decision of this Court in Sati Nath Sikdar v/s. Ratanmani Naskar, (1911) 15 C.L.J. 335 observed as follows:
It is beyond controversy that the Munsif has laid himself open to the gravest censure for the matter in which he has conducted himself and the explanation he has submitted is wholly unsatisfactory. His act plainly amounts to a contempt of the authority of this Court and we trust, he will profit by the warning now given that the arm of this Court is long enough to reach any person who may behave in this manner. As regards the order he has made, we need only observe that it is wholly without jurisdiction and must be cancelled.

This decision was followed by P.B. Mukharji J., as he then was, in Mathura Mohan Goswami v/s. Jyotirmoy Chowdhury, (1964) 69 C.W.N. 568 and it was held by his Lordship that the entire proceeding was without jurisdiction after such a communication of the interim order passed by this Court was made in an Advocate's letter. We also find that the same opinion was expressed in another Bench decision of this Court in Durga Singh v/s. Smriti Debi , I.L.R. (1956) 1 Cal. 21 where delivery of possession, complained of, was made in contravention of the order for interim stay before direct communication from this Court. In these circumstances, we very much regret to say that the learned trial Court exposed itself to 'gravest censure' by putting the property to sale in contempt of the highest authority of the land and his explanation, to say the least of it, is highly unsatisfactory. It is all the more regrettable for it is not a case in the Court of the Munsif but in the Court of a Subordinate Judge who as is expected of him should have by now developed proper judicial propriety and acted upon the learned Advocate's letter communicating the interim order passed by this Court. He should have waited till at least upto that time when such communication could have been normally received from this Court. It also appears that the Subordinate Judge concerned did not express any regret for the way in which he has proceeded in the matter in controversy before us. Nevertheless, we hope that this will serve as a warning to him and he would properly amend his ways and proceed cautiously in future.

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