SHRIMATI MALAN DEVI Vs. BRIJ LAL AND OTHERS

JUDGEMENT

(1.) BRIJ Lal has a decree against Jagan Nath. In execution of that decree Shrimati Malan Devi petitioner in these proceedings filed certain objections and having failed therein instituted a suit under Order XXI, rule 63, Code of Civil Procedure. In execution of his decree Brij Lal had got attached a residential house in which Shrimati Malan Devi and respondents Des Raj, Ishar Devi, Shanti Devi and Daulat Ram claim certain share. In the suit filed by Shrimati Malan Devi, the usual declaration has been sought that the attached house is not liable to attachment and sale in execution of the decree of Brij Lal against Jagan Nath. Along with the plaint an application under Order 39, rules 1 and 2, and section 151, Code of Civil Procedure, was also stated to have been filed praying for staging the auction sale of the attached house. On that application on 25th January 1960 the learned Subordinate Judge directed execution to be stayed till the decision of the case. Notice was also issued to the opposite party for 8th February 1960. On 16th February 1960 it appears that on a representation having been made on behalf of the decree -holder the court felt that it had no power to restrain the executing Court to stay the proceedings. On this view of the matter the Court felt that its order dated 25th January 1960 was wrong. It, therefore, vacated the stay order and instead directed Brij Lal decree -holder not to pursue the execution of the decree till the decision of the application filed by Malan Devi for stay of the execution. The Court also added a note at the bottom of its order that the executing court should be informed of the said order. It appears that inspite of this direction warrants for the auction and sale of the attached house were somehow got issued from the executing Court.

(2.) ON 2nd May 1960 the petitioner moved the trial Court for giving effect to its directions dated 16th February 1960 and also prayed for taking proceedings for contempt of Court against the decree -holder. It was stated in this application that the sale of the house in question was fixed for 14th May 1960 and it was prayed that necessary orders be passed for effecting a stay of the sale. The learned Subordinate Judge issued notice of this application on payment of process fee but, curiously enough, fixed 17th May 1960 for the disposal of the petition. Feeling aggrieved by this order the petitioner has come to this Court with a prayer that this Court may direct stay of the sale fixed for 14th May 1960.

(3.) SHRI Sarin has submitted that once the trial Court thought that it was a fit case for adjudicating upon the allegations made in the petition dated the 2nd May 1960 the trial Court should have either disposed of the petition before the date fixed for the proposed sale of the attached house or if the petition could not be so disposed of, the Court below should have directed stay of the proposed sale.