LexMULRAJ versus MURTI RAGHONATHJI MAHARAJ
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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. (Tempo-
rary) 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 rais-
ed 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 quash-
ing 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 proceed-
ings 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withdrawn, the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the stay order has been withdrawn.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 posi-
tion as an order of injunction with one difference.
An order of injunc-
tion 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. (Tempo-
rary) Control of Rent and Eviction Act, No. III of 1947, {herein-
after 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
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