*THE HON'BLE SRI JUSTICE P.S. NARAYANA +C.R.P.No.3215 of 2009 % 10-8-2009 # Sunkugari Srinivasa Reddy .. Petitioner Vs. $ M.Vijayalakshmi and others .. Respondents <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri S.Lakshmi Narayana Reddy ^ Counsel for 1st respondent : Sri B.Nagi Reddy Counsel for 2nd respondent : Sri Ranga Reddy Counsel for 3rd respondent : Sri Veera Reddy ?CASES REFERRED: 1. 1990(3) SCC 291 2. AIR 1955 Andhra 4 3. 2008(5) ALD 714 4. AIR 1981 Rajasthan 133 5. AIR 1959 A.P. 310 (FB) 6. AIR 2008 S.C. 2069 THE HON'BLE SRI JUSTICE P.S. NARAYANA C.R.P.No.3215 of 2009 Date : 10-8-2009 Between : Sunkugari Srinivasa Reddy .. Petitioner Vs. M.Vijayalakshmi and others .. Respondents ORDER: 1. This matter is coming up for admission. 2. Sri M.N. Narasimha Reddy representing Sri Nagi Reddy, on 22-7-2009 represented that the Counsel entered appearance by lodging caveat on behalf of the 1st respondent. The learned Counsel representing the Revision petitioner Sri Lakshminarayana Reddy pleaded urgency and hence the learned Counsel was permitted to take personal notice to respondents 2 and 3 by Registered post with acknowledgement due. Sri Ranga Reddy, the learned Counsel entered appearance on behalf of 2nd respondent and Sri Veera Reddy entered appearance on behalf of 3rd respondent. 3. The Counsel on record made submissions in elaboration and made a request for final disposal of the C.R.P. at the admission stage itself and hence this Court heard the Counsel at length and the Civil Revision Petition itself is being disposed of finally at the stage of admission. 4. The present Revision petitioner/2nd respondent had preferred the present Civil Revision Petition under Article 227 of the Constitution of India being aggrieved of an order made in I.A.No.3009/2007 in O.S.No.22/2007 on the file of III Additional District Judge, Kurnool. The 1st respondent is the plaintiff in the said suit O.S.No.22/2007 aforesaid. The said application was filed by the 1st respondent/plaintiff praying for stay under Section 151 of the Code of Civil Procedure, in short referred to as “Code” for the purpose of convenience, and the learned III Additional District Judge, Kurnool at Nandyal, after recording reasons ultimately allowed the application granting stay of execution till further orders. Aggrieved of the same, the present Civil Revision Petition had been preferred. 5. Sri Lakshminarayana Reddy, the learned Counsel representing the petitioner had taken this Court through the contents of the order under challenge and would maintain that though there are no bona fides at all and though no prima facie case had been made out, the learned III Additional District Judge, Kurnool at Nandyal totally erred in granting stay of the proceedings. The learned Counsel also would maintain that the learned Judge should have appreciated that the plaint schedule property already had been mortgaged in favour of the petitioner by the 2nd respondent who is none other than the mother of the 1st respondent on 21-6-2003 as she had borrowed an amount of Rs.6 lakhs from the petitioner and executed a mortgage deed in respect of the plaint schedule property. The learned Counsel also would maintain that the unfortunate petitioner filed O.S.No.83/2005 for recovery of Rs.8,64,217/- on the strength of the said mortgage deed executed by the 2nd respondent on the file of Senior Civil Judge, Nandyal and the same was decreed on 8-2-2006 and a preliminary decree was passed and subsequently a final decree also was passed on 5-1-2007 in I.A.No.183/2006. The learned Counsel also would point out that the conduct of the 1st respondent/plaintiff also to be taken into consideration since for sufficiently long time having kept quiet, the 1st respondent had chosen to institute this suit O.S.No.22/2007. The learned Counsel also pointed out that the learned Judge should have appreciated that the 2nd respondent/mother had chosen to contest the suit O.S.No.83/2005 and also E.P.No.76/2007, but however at no point of time this agreement of sale in favour of the daughter had been pleaded and having kept quiet and having maintained silence and having been unsuccessful in all the attempts the daughter was chosen for this purpose and on the strength of the an alleged agreement of sale the present suit had been thought of. The learned Counsel also pointed out that it is not as though the 1st respondent has no knowledge about these proceedings. In fact, she made an attempt to come on record in E.A.No.1163/2007 in E.P.No.76/2007 in O.S.No.83/2005 by filing E.A.No.520/2008 to implead herself as a party. The said application was dismissed and the said order was not challenged and in a way the same had attained finality. The learned Counsel also pointed out that the 1st respondent also moved I.A.No.3009/2007 for stay of proceedings in E.P.No.76/2007 suppressing all these facts. The learned Counsel also pointed out to Section 41(h) of Specific Relief Act 1963, Order 21 Rule 90 and Rule 101 of the Code and would maintain that inasmuch as it is clearly a collusive game which is being played by the mother and daughter and especially in the light of the fact that such alternative remedies are available in the light of language of Section 41(h) of the Specific Relief Act 1963 aforesaid, this may not be a fit case where discretion to be exercised in favour of such party by granting interim stay and hence the learned III Additional District Judge, Kurnool at Nandyal had totally erred in granting such an order. The Counsel also pointed out to the relevant portions of the order made in Transfer O.P.No.61/2008 on the file of Principal District Judge, Kurnool. The learned Counsel also relied on several decisions to substantiate his submissions. 6. Sri M.N. Narasimha Reddy representing Sri Nagi Reddy, the Counsel for the 1st respondent would maintain that this is a suit based on the strength of an agreement of sale and the Counsel would maintain that unless the suit is decreed and a regular registered sale deed is obtained by virtue of such decree for specific performance, inasmuch as this is an application arising out of a contract, the question of exhausting alternative remedies may not come in the way, this being an independent suit for the relief of specific performance. The learned Counsel in all fairness would maintain that it is true that the daughter made an attempt by filing an application E.A.No.520/2008 in E.A.No.1163/2007 and the said application was dismissed. But however, the Counsel would maintain that inasmuch as an independent suit is pending the plaintiff in the said suit/1st respondent in the Civil Revision Petition, thought of filing an independent application praying for stay and such application under Section 151 of the Code is perfectly maintainable. The learned Counsel while further elaborating his submissions would maintain that in fact the Decree-holder and the auction purchaser are sailing together and on a loose sum the sale was knocked down. In fact this unfortunate daughter was kept in darkness by the mother. That is for the reason that in the prior proceedings there was no whisper made by the mother about the agreement of sale if the daughter though in fact the agreement of sale had been executed. The Counsel also pointed out that if the cause title to be carefully examined, it is clear that since different addresses are given in relation to the mother and daughter, the ground of collusion which is being alleged by the other side cannot hold water. The learned Counsel also further pointed out that the interest of the auction purchaser also had been in a way safeguarded by the learned Judge. The learned Counsel also would further point out that several of the decisions relied upon by the Counsel representing the Revision petitioner are under Order 39 Rules 1 and 2 of the Code and not under Section 151 of the Code. Further while making submissions the Counsel specifically pointed out to Section 55(6)(b) of Transfer of Property Act and the language employed therein and further referred to Section 64 of the Code. The learned Counsel also relied on certain decisions to substantiate his submissions in this regard. 7. Sri Ranga Reddy, the learned Counsel representing the 2nd respondent had made certain submissions touching the irregularity or illegality in the conduct of sale and the publication made in Andhra Charitha and certain other aspects. The learned Counsel no doubt affirm on the aspect of execution of agreement of sale and would maintain the same stand as that of the 1st respondent. 8. Sri Veera Reddy, the learned Counsel representing the 3rd respondent/auction purchaser would maintain that in favour of the auction purchaser the sale was knocked down and such party who became successful bidder, because of interim order such party is unable to further prosecute the execution proceedings by having the confirmation of sale and by further proceeding with delivery of the property. The mere fact that a direction was given to keep the amount which had been deposited in fixed deposit, this cannot be said to be a safeguard to protect the interest of this auction purchaser who purchased the property bona fide in a Court auction sale. 9. Heard the Counsel. 10. In the light of the submissions made by the Counsel on record, the question to be decided in the present Civil Revision Petition is as hereunder: Whether the grant of stay by the learned III Additional District Judge, Kurnool at Nandyal in I.A.No.3009 in O.S.No.22/2007 to be sustained or to be set-aside in the facts and circumstances of the case ? 11. The Revision petitioner is the 2nd respondent in I.A.No.3009/2007 in O.S.No.22/2007. The 1st respondent/petitioner/plaintiff filed I.A.No.3009/2007 in O.S.No.22/2007 aforesaid praying for stay of further proceedings on the ground that she purchased the plaint schedule property from her mother shown as 2nd respondent in the Civil Revision Petition i.e., 1st respondent in the application aforesaid under an agreement of sale dated 6-4-2001. It is her case that she had instituted a suit for the relief of specific performance O.S.No.22/2007 and in the meanwhile the plaint schedule property was brought to sale by the learned Principal Senior Civil Judge, Nandyal in E.P.No.76/2007 in O.S.No.83/2005 filed by the Revision petitioner for recovery of amount and the 3rd respondent in the Civil Revision Petition participated in the Court auction sale and became successful bidder and if the sale is confirmed the said plaintiff in O.S.No.2/2007 will be put to heavy loss. That is the ground on which the said application was filed under Section 151 of the Code. 12. Hereinafter the plaintiff would be referred to as “daughter” and the Judgment-debtor would be referred to as “mother”. 13. Several of the facts appear to be not in serious controversy. The fact that the 3rd respondent became the successful bidder in the Court auction sale and purchased the property for a sum of Rs.13 lakhs and the same had been deposited by him in Court, this fact also is not in controversy. The principal ground on which stay had been prayed for by the 1st respondent/plaintiff in O.S.No.22/2007 is that as an agreement holder since a suit for specific performance had been instituted, inasmuch as there is an enforceable contractual obligation, if in the meanwhile the sale to be confirmed and possession to be taken, she will be put to heavy loss and hence the further proceedings are to be stayed. In nutshell this is the stand of the daughter. No doubt certain submissions were made pointing out to the door numbers and the addresses given to substantiate their stand that absolutely there is no collusion between the daughter and the mother. However, the fact that at a particular point of time an attempt was made by the daughter by filing E.A.No.520/2008 to come on record in the application filed by the mother E.A.No.1163/2007 this aspect also is not in controversy. 14. Section 55 of the Transfer of Property Act 1882 had been relied upon which deals with Rights and liabilities of the buyer and seller. Section 55(6)(b) of the aforesaid Act specifies : “The buyer is entitled unless he has improperly declined to accept delivery of the property to a charge on the property, as against the seller and all persons claiming under him to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission. ” 15. Sri M.N. Narasimha Reddy also placed strong reliance on the decision of the Apex Court in Vannarakkal Kallalathil Sreedharan Vs. Chandramaath Balakrishnan and another [1] wherein the Apex Court at paras 7 and 9 observed : “Hence under a contract of sale entered into before attachment the conveyance after attachment in pursuance of the contract passes on good title in spite of the attachment. To the same effect are the decisions of the Bombay High Court in Rango Ramachandra Kulkarni v. Gurlingappa Chinnappa Muthal (AIR 1941 Bom. 198) and Yeshvant Shanker Dunakhe v. Pyaraji Nurji Tamboli (AIR 1943 Bom. 145). The High Court of Travancore-Cochin in Kochuponchi Varughese Vs. Ouseph Lonan (AIR 1952 TC 467) has also adopted the same reasoning. ….. In our opinion, the view taken by the High Courts of Madras, Bombay, Calcutta and Travancore-Cochin in the aforesaid cases appears to be reasonable and could be accepted as correct. The agreement for sale indeed creates an obligation attached to the ownership of property and since the attaching creditor is entitled to attach only the right, title and interest of the judgement-debtor, the attachment cannot be free from the obligations incurred under the contract for sale. Section 64 C.P.C. no doubt was intended to protect the attaching creditor, but if the subsequent conveyance is in pursuance of an agreement for sale which was before the attachment, the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor. The rights of the attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for sale of the attached property. The attaching creditor cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment-debtor. We cannot, therefore, agree with the view taken by the Punjab and Haryana High Court in Mohinder Singh case (AIR 1971 P&H 381).” There cannot be any quarrel relating to the settled proposition which had been laid down by the Apex Court. 16. In Kondapapaneni Raghavaiah and another Vs. Inguva Lakshminarayana and another [2] it was held : “High Court in exercise of its inherent jurisdiction can stay not only the trial of an independent suit in the course of the proceedings pending before it, but also proceedings in execution of a decree in an independent suit if it is in the interests of justice or to prevent abuse of process of the ct and there is no other remedy available to the applicant. In order to attract the terms of Section 151, C.P.C., two conditions have to be satisfied; (1) that the applicant for stay has no other remedy available in law, which he can seek from a competent civil court, and (2) that the stay has to be ordered in the ends of justice or to prevent abuse of process of the court. The mere fact that the suit, the trial of which is sought to be stayed, is an independent suit and is not in any way connected with the suit under appeal is not a sufficient ground for denying the exercise of the power under Section 151 C.P.C.” 17. The inherent power under Section 151 of the Code to be exercised sparingly with great care and caution especially in a case of this nature where stay of further proceedings in execution had been prayed for, that too at a belated stage. The inherent powers of the Court are in addition to and complementary to the powers exercisable conferred upon it by the other provisions of the Code. They are not intended to enable the Court to create rights in parties, but they are meant to enable to pass such other orders for the ends of justice as may be necessary considering the rights which are conferred upon the parties by a substantive law. The inherent powers of the Courts are in addition to and complementary to the powers expressly conferred under the Code. Such powers to be exercised within the bounds and such powers not to be exercised if exercise of such powers would be inconsistent with or would come in conflict with any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to the necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. What ever limitations are imposed by construction on the Section 151 of the Code, they do not control the undoubted power of the courts conferred under Section 151 to make suitable orders so as to prevent abuse of process of the Court. 18. It is no doubt true that in a bona fide case where in a particular given facts and circumstances, if the Court is satisfied the stay of an independent suit or stay of proceedings may be granted. While exercising the discretion, Courts are expected to be careful and cautiously scan the factual matrix of a particular given case. If on facts, the Court is satisfied relating to the non bona fides, there can be exercise of discretion in favour of such a party. Certain submissions were made that the settled principles which are applicable in relation to the granting of temporary injunctions restraining the lawful execution of decree may not be equally extended or may not be applicable while deciding the cases relating to the granting of stay of independent proceedings. 19. The representing provisions of Order 21 Rules 58, 90 and 101 of the Code also had been referred to. In Berla Ramesh Vs. V.B. Markandeya and others [3] the learned Judge of this Court while dealing with Order 21 Rule 95 and the proceedings thereunder held that the rule does not mandate that any detailed adjudication must be undertaken in applications under Rule 95 of Order 21 for delivery of property in occupancy of judgment-debtor and a third party to decree, in case, he has any interest vis-à-vis suit property has to work out his remedies by filing an application under Rule 58 or Rule 99 of Order 21 depending on the stage of the proceedings which must be tried as suit. 20. It is no doubt true that in the present case an independent suit for the relief of specific performance on the strength of an agreement of sale had been instituted and hence this decision may not be applicable to be facts on hand. 21. Reliance also was placed on Associated Cement Companies Ltd Vs. The State of Rajasthan and another [4] wherein the Division Bench of Rajasthan High Court at paras 10 and 26 observed: “In order to enable a party to obtain a temporary injunction he has to satisfy the following three conditions – (i) first, that there is a prima facie case in favour of the plaintiff i.e., there is a serious question to be tried in the suit and that on the facts before the Court there is a probability of his being entitled to the relief asked for by him; (ii) secondly, that the Court’s interference is necessary to protect him from that species of injury which the Court calls irreparable before his legal rights can be established on trial, and (iii) thirdly, that the comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. Besides the above three conditions, it should also be kept in mind that Section 41(h) of the Specific Relief Act, 1963 lays down that an injunction which is a discretionary equitable relief, cannot be granted with an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust. …….. …….. Section 10 of the Specific Relief Act provides that except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the Court, be enforced when there exists no standard for ascertaining the actual damage caused by the non- performance of the act agreed to be done; or when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. Before granting a temporary injunction it would always be beneficial to examine Sections 10, 41 and 42 of the Specific Relief Act. On the facts and circumstances of the case it cannot be said that the learned District Judge was wrong in holding that the balance of convenience lies in not granting the injunction in favour of the plaintiff, because by non-grant of injunction the plaintiff was not going to suffer irreparable loss. It should also not be forgotten that the appellant has challenged the validity of the Notification, dated December 17, 1975, in the year 1979 i.e., after the expiry of three years and two months. The plaintiff, claiming equitable relief, is bound to prosecute his claim without undue delay. While considering an equitable relief, the Court can refuse its discretion to a person, who has been sleeping over his rights and who has made a stale demand. The learned District Judge placing reliance on Bhagalpur Rolling Mills Vs. Bhagalpur Electric Supply Company Ltd (AIR 1974 Pat. 269), held that keeping in view the delay on the part of the plaintiff, it would not be in the interest of justice to grant him any discretionary relief”. 22. A Full Bench of this Court in Datla Chinna Appalanarasimha Raju Vs. Nadimpalli Seethayamma Garu and others [5] no doubt while dealing with Order 39 Rules 1 and 2 of the Code observed : “In an early decision in Vardacharyulu Vs. Narasimhacharyulu, 23 Mad.L.W. 85 : (AIR 1926 Mad. 258) Phillips, J., held that O.39., Rr. 1 and 2 or any other provision in the Civil Procedure Code, does not enable the Court to issue an injunction restraining the execution of a decree lawfully obtained by a defendant. The learned Judge observed : “The alleged injury is the execution of a decree lawfully obtained. In order to hold that that does constitute an injury, it is necessary to hold that the decree is illegal, for, if the decree is legal, the defendant has every right to execute it and in doing so, he cannot be said to commit any injury”. The decision was approved by a Division Bench of the Madras High Court, consisting of Beasley C.J., and Stodard, J. in Sankara Iyer v. Md. Gani Rowther, AIR 1936 Mad. 276. In Ayyamperumal v. Muthuswami, AIR 1927 Mad. 687, Curgenven, J., has held that the Court is not competent to grant a temporary injunction restraining the execution of a decree passed by a competent Court either under O.39 or S.151 C.P.C. In Subramanian Vs. Seetarama Aiyar, ILR 1949 Mad. 316 (AIR 1949 Mad.104) a Division Bench of the Madras High Court, consisting of Rajamanner C.J., and Rajagopalan, J., has held that proceedings in execution of a decree, which has not been set-aside and is in force, against persons bound by the decree, do not amount to committing ‘injury’ within the meaning of O.39 R.2 and an injunction cannot be issued under that provision to restrain such execution. …… In Ramkeshwar Das Vs. Baldeo Singh AIR 1938 Patna 606, Wort, J., observed