Decided on July 15,1983

Sisir Kumar Arnab And Ors. Appellant
Nitibrata Ghosh Dastidar And Ors. Respondents


Nani Gopal Chaudhuri, J. - (1.) This petition under section 115 Civil Procedure Code is directed against Order No. 5, dated 11. 7. 83 passed by the District Judge, Alipore in Miscellaneous Appeal No. 294 of 1983. By the said order operation of an order for temporary injunction embodied in Order No. 37 dated 1.7.83 passed in Title Suit No. 285 of 1980 in the 1st Court of Munsif, Alipore, has been stayed. The antecedent facts may be stated briefly as follows:- The petitioners, as plaintiffs, filed Title Suit No. 285 of 1980 praying for declaration and permanent injunction in respect of a plot of land. The plaintiffs alleged that by bringing their Rath on the disputed plot of land every year they perform Rathajatra festival. There is no doubt that in the year 1981 the plaintiffs obtained an order of temporary injunction restraining the defendants from interfering with performance of Rathajatra on the disputed land by the plaintiffs. There was an appeal against the order of the learned Munsif viz., Miscellaneous Appeal No. 500 of 1981 and it is alleged that the Appellate Court substantially modified the order of the learned Munsif. Be that as it may, this year when the suit was pending, the petitioners, as plaintiffs filed a petition for temporary injunction and the learned Munsif by Order No. 37 dated 1.7.83, after hearing the p ies, ordered : Let there be the performance of Rathajatra from 5th July to 19th July, on the suit property setting of the tents etc. and the defendant club is refrained from playing the that ground for the aforesaid period.
(2.) Immediately the defendants filed an appeal, to be precise on the 4th July, 1983 the defendants filed an appeal in the court of the District Judge, Alipore, and the appeal was numbered Miscellaneous Appeal No. 294 of 1983. On that very date namely 4.7.83 appellants filed a petition, supported by affidavit, praying for stay of the order appealed against till the disposal of the appeal. Copy of the petition was served on the respondents who had lodged a caveat. Hearing both the sides the learned District Judge fixed 6.7.83, for hearing the said matter permitting filing of written objection, if any, in the meantime. The point to note is that although the appeal was an appeal under order 42, Civil Procedure Code and the parties were before the Court, instead of hearing the appeal expeditiously the learned Judge proposed to hear the stay application filed by the defendant-appellants. By the order impugned, passed on 11. 7. 83 the learned District Judge has stayed the operation of the order appealed against. He has observed, in the circumstances stated above, as the Rathajatra festival has not yet began the operation of the impugned order is hereby stayed.
(3.) It should be borne in mind that the appeal is still pending. The order impugned as assailed before me on the facts and documents. I am not going to enter into those details. For the present, I will focus my attention only on a single point of law i.e., if an Appellate Court while entertaining an appeal from an order of temporary injunction under Order 43, Civil Procedure Code can stay operation of the order. If the Appellate Court has no such power the conclusion would become inescapable that an order of stay passed is an order passed in excess of jurisdiction of the Appellate Court. Which would attract provisions of section 115 of the Code going through Order 43, Civil Procedure Code, I do not find any provision which authorise the Appellate Court to stay operation of an order appealed against. In this connection reference may be made to the provisions of , when an appeal is filed against a decree the appeal does not operate as a stay of proceedings under the decree and under the aforesaid rule the Appellate Court may, for sufficient reason, stay execution of the decree. It is very significant that similar powers have not been conferred on an Appellate Court under the provisions of Order 43, Civil Procedure Code. The reason is not for to seek. Appeals under Order 43 can be heard and disposed of far more expeditiously than appeals from decrees. Further stay of operation of an order appealed against virtually amounts to pre-judge the appeal. In the present case I have already indicated that the parties were before the learned District Judge when he passed the impugned order of stay. In the fitness or things the learned District Judge could hear the appeal itself. If his own hands were full, he could have transferred the appeal to any other Court for speedy hearing and disposal. A mere reading of the order indicated that the order passed by the learned Munsif was operative for the period from 5th July to 19th July. So, it is undisputed that the appeal demanded early hearing. The learned District Judge perhaps could have the appeal heard expeditiously on 4th of July, 1983 when he actually passed the impugned order. Instead of doing that the learned District Judge passed the order of stay. As I have already indicated that the Code of Civil Procedure itself does not expressly or expeditiously confer on an Appellate Court entertaining appeal under Order 43 Civil Procedure Code power to pass order of stay regarding an order impugned in an appeal. Mr. Roy Choudhury on behalf of the opposite-parties, however, argues that Court was competent to exercise its power under section 151, Civil Procedure Code. I cannot accept this contention. While the Appellate Court exercised its Tower under section 151 Civil Procedure Code such exercise of power was in conflict of his power as an Appellate Court. It may be that after hearing the appeal the Appellate Court might be inclined to uphold and confirm the order appealed against, in that event their would be a conflict in the order of stay and the order to be passed after hearing the appeal. The best course to avoid in such contingencies is to hear the appeal expeditiously without passing any order of stay. In the present case there was no bar to such hearing. Still the learned District Judge did not hear the appeal on merits, rather passed the impugned order. I have not the slightest doubt that the order was passed by the District Judge in excess of his jurisdiction and as such is liable to be set aside. I have made no observation regarding the facts as the appeal is still pending.;

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