Calcutta High Court
CIVIL RULE.
Before Mr. Justice Woodroffe and Mr. Justice Mookerjee.
PANCHANAN SINGHA ROY
v.
DWARKA NATH ROY AND OTHERS
Civil Rule No. 3093 of 1905, against the order of Mr, Ezechiel, District Judge of Rungpur, dated the 25th July 1905.
Guardian and Wards Act (VIII of 1890), Secs. 3, 7, 12, 47, clause (a)—Guardian of an infant, order appointing—Guardian ad litem, power to appoint—”Court,” meaning of—Appeal against order—Appellate Court, power of, to direct stay of order appealed against—Appellate Court, power of, to make ad interim order appointing guardian—Code of Civil Procedure (Act XIV of 1882), Secs. 545, 582—Procedure, if to be regulated only by the Code and onus of proof—Status quo, maintenance of—Injury to infant—Inherent power of Court—High Court.
Per WOODROFFE J.—Civil Courts in this country have, in matters of procedure, powers beyond those which are expressly given by the Code of Civil Procedure, which binds the Courts only so far as it goes. The Code does not affect powers previously possessed unless it expressly takes them away. It does not affect the power and duty of the Courts to act according to equity and good conscience in cases for which no express provision is made. The Court has an inherent power to do that justice for the administration of which alone it exists.
Per CURIAM.—An appellate Court having seizin of an appeal has power to make an order staying proceedings in a lower Court pending the hearing of the appeal to that Court. The power to stay proceedings is ancillary to the power of the appellate Court as the appellate authority to reverse the order of the inferior Court.
Mussamat Brij Coomaree v. Ramrick Dass (1), Bal Kishen v. Khugnu (2) referred to.
The High Court has power, pending an appeal before it against an order appointing a guardian of an infant under the Guardian and Wards Act (VIII of 1890), to stay proceedings in the lower Court for the carrying out of the order appealed against.
The High Court, as an appellate Court, has the power to make an interlocutory order appointing an ad interim guardian.
Per MOOKERJEE J.—The appellate Court, when it hears the appeal, is competent to make, in substitution for the order passed by the inferior Court, such an order as in its opinion ought to have been passed by that Court; and as ancillary to the power which the appellate Court thus possesses of appointing a proper person as guardian, it possesses also the power to appoint a temporary guardian during the pendency of the appeal. The Court in an appeal from the final order has in this respect the same power which has been expressly conferred upon the Court of first instance.
Pasupati Nath Bose v. Nanda Lal Bose (1) referred to.
Such power may be exercised, even though no statutory provision has been made for it. When a party has obtained an order in his favour from the lower Court, he is entitled to rely upon that order and thus to throw the onus upon the party appealing against that order of satisfying the superior Court as to why that order should not be immediately carried into effect and why a temporary guardian should be appointed; and if a satisfactory case is made out by him, the High Court will interfere and order that the status quo should not be disturbed during the pendency of the appeal.
Quaere—Whether Sec. 545 of the Civil Procedure Code applies to an application for the stay of proceedings in the lower Court under an order appointing a guardian of an infant.
Pasupati Nath Bose v. Nanda Lal Bose (1) referred to.
Rule obtained by the Applicant.
Application for stay of an order appointing a guardian under Act VIII of 1890 (Guardian and Wards Act), and for an order for appointment of a temporary guardian ad litem.
The facts of the case appear fully from the judgments.
Mr. A. Chaudhuri and Babu Priya Nath Sen for the Petitioner.
Babus Nilmadhab Bose, Mohini Mohan Chakravarti and Charu Chandra Dey for the Opposite party.
C. A. V.
The following judgments were delivered by the Court:
WOODROFFE J.—My learned brother has, in the judgment he is about to deliver, fully stated the facts of the case. The argument on the law has taken the form of an objection to jurisdiction. The question is, however, not one so much of jurisdiction as of the powers this Court possesses in respect of a subject matter which by reason of the appeal has been submitted to its jurisdiction.
It seems to have been assumed in this as in some other cases that the procedure of Courts in this country is to be regulated only by the express provisions of the Code. I do not think that this is so. Civil Courts in this country have, in matters of procedure, powers beyond those which are expressly given by the Code of Civil Procedure. The Code binds the Courts only so far as it goes. It does not affect powers previously possessed unless it expressly takes them away. It does not, for instance, affect the power and duty of the Courts to act according to equity and good conscience in cases for which no express provision is made. The Court has an inherent power to do that justice for the administration of which alone it exists.
MOOKERJEE J.—This Rule was issued on the 24th August 1905, calling upon the opposite party to show cause why, pending the disposal of the appeals that have been preferred to this Court, the appointment of Babu Dwarka Nath Roy as guardian of the minor should not be stayed, and why, in the meantime, the temporary guardian Babu Ganga Nath Roy, previously appointed by the District Judge, should not continue to have charge of the person and property of the said minor. An ad interim order was also made appointing Babu Ganga Nath Roy as temporary guardian, if he was willing to act as such. The Rule has now been argued before us, and the material facts may be briefly stated.
According to the Mitakshara law of succession which, it is conceded, would govern the parties, if Lachman Singh died intestate, the unmarried daughter Panchi would be entitled to the whole estate in preference to her married sisters. It is alleged, however, by Dwarka Nath that Lachman Singh left a will of which probate was taken out by Sasikala; under this will, Sasikala took a life-interest in the estate, and the daughters, subject to such life-estate, took an absolute interest in equal shares. It is further alleged that Sasikala herself executed a will making various dispositions of the properties which she possessed. After the death of Sasikala, Dwarka Nath, his wife Kanaklata, and his brother-in-law Jogendra, applied, on the 28th April, for Letters of Administration with the will annexed to the estate of Lachman Singh; thereupon, the present petitioner, who is the sister’s son of Lachman Singh, presented an application on behalf of the infant Panchi for revocation of the probate of the will of Lachman Singh, alleging that it was a forgery. On the 4th May, Dwarka Nath and others applied for probate of the will of Sasikala, to which caveat was entered on behalf of the infant Panchi. During the pendency of these proceedings, on the 26th April 1905, the present petitioner Panchanan applied to the District Judge under Act VIII of 1890, to be appointed guardian of the infant, and on the same date similar applications were made by Kanaklata and Dwarka Nath. Shortly after, four other applications for the same purpose were presented to the District Judge by different relations of Lachman and Sasikala. While all these applications were pending before the District Judge, on the 19th June he appointed one Jogesh Chandra Mazumdar as an ad interim guardian under Sec. 12 of Act VIII of 1890; but as various imputations were made against him, in consequence of which he declined to act, the District Judge, on the 1st of July, appointed Ganga Nath Roy, a retired Deputy Magistrate, to act as ad interim guardian. On the 25th July, the District Judge appointed Dwarka Nath as guardian, and the application of Panchanan was dismissed. By this order, Dwarka Nath was appointed guardian only of the person and the moveable property of the infant. It is stated on behalf of Dwarka Nath, that he did not seek to be appointed guardian of the immoveable property of the minor, because a guardian cannot be appointed to the estate of a minor co-parcener of a joint Mitakshara family; it is alleged, however, on behalf of the present petitioner, with some plausibility, that the real reason why Dwarka Nath does not seek to be appointed guardian of the immoveable property of the infant, is that under the alleged will of his father-in-law, he claims to be entitled to possession of the whole estate as executor after the death of his mother-in-law. On the 4th August 1905, the petitioner preferred two appeals to this Court against the orders of the District Judge rejecting his application for appointment as guardian and appointing Dwarka Nath as guardian of the infant. On the 24th August, upon the application of the appellant, the Rule now under consideration was issued in the following terms: “Let the record be sent for, and a Rule issue calling on the opposite party to show cause why, pending the disposal of the appeals that have been preferred to this Court, the appointment of Babu Dwarka Nath Roy as guardian of the minor should not be stayed, and why, in the meantime, the temporary guardian Babu Ganga Nath Roy, previously appointed by the District Judge, should not continue to have charge of the person and property of the said minor; In the meantime, and pending the disposal of the Rule, let the said Babu Ganga Nath Roy be appointed temporary guardian of the said minor, if he is willing to act as such.” We are informed that as soon as the order of the 25th July was passed by the District Judge, Dwarka Nath Roy furnished the necessary security and took over the minor from the custody of the temporary guardian Ganga Nath Roy, but that upon the service of the Rule issued by this Court upon Dwarka Nath, he has restored the minor to the custody of Ganga Nath, and she is now under his charge.
Babu Nilmadhab Bose who has appeared to show cause against the Rule on behalf of Dwarka Nath, has argued that the Rule, as also the ad interim order, ought to be discharged on three grounds, namely, first, because this Court has no jurisdiction to stay the execution of the order of the District Judge appointing Dwarka Nath as guardian; secondly, because this Court has no jurisdiction to appoint a temporary guardian during the pendency of the appeals which have been preferred to this Court; and thirdly, because, assuming that this Court is competent to make an order for stay of proceedings and the appointment of a temporary guardian, sufficient grounds have not been established to justify the exercise of such jurisdiction.
In support of his first contention, it is argued by the learned vakil for the opposite party, that the only section of the Civil Procedure Code under which a Court of appeal has jurisdiction to stay proceedings, is section 545, which, by its very terms, is limited to execution of decrees, and is, consequently, inapplicable to the matter in hand. It is suggested that the appeals which have been preferred to this Court are appeals, not against decrees, but against orders which, but for section 47 clause (a) of Act VIII of 1890, would not be appealable. In my opinion, it is not necessary to consider whether section 545 is applicable to a case of this description, although having regard to the observations of Maclean C. J. in Pasupati Nath Bose v. Nanda Lal Bose (1) the question is at least open to contention. It appears to me to be quite clear that this Court has power to stay all proceedings that may be taken in pursuance of the order of the Court below, on the broad ground that the Court which has seizin of the appeal can make an order staying proceedings pending its hearing. This doctrine has been recognised by this Court in the cases of Mussamat Brij Coomaree v. Ramrick Dass (2) and Bal Kishen Sahu v. Khugnu (3). In the first of these cases, it was held that before an appeal has been preferred against an order made by a Court, it has an inherent power to stay, under proper circumstances, the drawing up of its own order, or to suspend its operation, if the necessities of justice so require. It was further pointed out that, after an appeal has been preferred, the appellate Court has power to stay proceedings, if it is satisfied that there is a danger that the appeal, if successful, is likely to be infructuous if proceedings are not stayed meanwhile. In support of this latter proposition, reliance was placed by the learned Judges upon the cases of Polini v. Gray (4) and Wilson v. Church (5) which are authorities for the proposition that where an unsuccessful party is exercising an unrestricted right to appeal, it is the duty of the Court in ordinary cases to make such order for staying proceedings under the judgment appealed from as will prevent the appeal, if successful, from being nugatory, because, as Sir George Jessel M. R. put it, the principle which underlies the exercise of this jurisdiction by the Courts is that the ultimately successful party is to reap the fruits of the litigation and not obtain merely a barren success. It is obvious that if this principle was rightly held to be applicable to the cases then before the Court which related to the distribution of funds in Court, it ought to apply with much greater reason to a case of the description now before us, where irremediable injury might possibly be done to a minor, if she is placed in the custody of an improper person, during the pendency of the appeal. It is conceded that this Court, when it hears the appeal, may set aside the appointment made by the District Judge, but it is strenuously contended that as there is no power expressly conferred upon this Court to stay proceedings in the Court below, this Court ought not to assume a power which has not been conferred upon it by Statute. In my opinion this argument is not well founded; the power to stay proceedings is ancillary to the power of this Court as the appellate authority to reverse the order of the inferior Court. Without such power, the exercise of our appellate jurisdiction might in many instances prove infructuous. As regards the argument that there is no express statutory provision on the subject, I need only refer to a well known passage from Domat’s Civil Law, Chapter XII, Sec. XVII (Cushing’s Edition, Vol I p. 88), which is quoted with approval by Sir Barnes Peacock C. J. in his judgment in the Full Bench case of Hurro Chunder Roy Chowdhry v. Sooradhonee Debia (6): “Since Laws are general rules, they cannot regulate the time to come, so as to make express provision against all inconveniences, which are infinite in number, and that their dispositions should express all the cases that may possibly happen; but, it is only the prudence and duty of a lawgiver to foresee the most natural and most ordinary events, and to form his dispositions in such a manner as that, without entering into the detail of the singular cases, he may establish rules common to them all, by discerning that which may deserve either exceptions or particular dispositions. And next it is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appeared to be comprehended either within the express sense of the law, or within the consequences that may be gathered from it.” I entertain no doubt whatever that as we have seizin of the appeal, we have power to make an order staying proceedings pending its hearing. The first ground upon which the Rule is opposed consequently fails, and must be overruled.
In support of his second contention, namely, that this Court has no jurisdiction to appoint a temporary guardian during the pendency of the appeals preferred by the petitioner, the learned vakil who appears to show cause has relied upon section 12 of Act VIII of 1890, which provides that the Court may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. He has argued that the “Court” referred to in this section is, as is pointed out in section 4 of the Act, the District Court having jurisdiction to entertain an application under the Act for an order appointing or declaring a person to be a guardian, and that consequently Sec. 12 does not confer upon the High Court as a Court of Appeal any power to appoint a temporary guardian. In my opinion, this contention is not well founded. Section 47 of Act VIII of 1890, which provides in cl. (a) that an appeal shall lie to this Court from an order made by a District Court under Sec. 7 appointing or declaring or refusing to appoint or declare a guardian, does not define the extent of the powers of the Appellate Court. It is not necessary for our present purposes to determine whether the Appellate Court, in every respect has the same powers and may perform the same duties as are conferred and imposed on the Court of original jurisdiction, a principle which is recognised by Sec. 582 of the Civil Procedure Code. But it appears to me to be quite clear that the Appellate Court, when it hears the appeal, is competent to make, in substitution for the order passed by the inferior Court, such an order as, in its opinion, ought to have been passed by that Court. In other words, to take the case now before us, if this Court, when it hears the appeal, is satisfied that A and not B ought to have been appointed guardian of the minor, it will be competent for it to appoint A as such guardian. As ancillary to the power which the appellate Court thus possesses of appointing a proper person as guardian, it possesses also the power to appoint a temporary guardian during the pendency of the appeal. The object to be attained by the appointment of a temporary guardian, whether such appointment is sought to be made during the pendency of the proceedings in the Court of first instance, or during the pendency of an appeal to this Court, is precisely the same, namely, the temporary custody and protection of the person or property of the infant. If the Court of first instance can exercise such a power, it would be unreasonable to hold that the Court of appeal also may not exercise a similar power. This doctrine was recognised by this Court in the case of Pasupati Nath Bose v. Nanda Lal Bose (1), where Maclean C. J. held that during the pendency of an appeal from an order in execution proceedings, this Court has quite as much power to stay proceedings as the Lower Court itself had when the proceedings were before it. To put the matter in another way, the appointment of a temporary guardian by a Court is merely the exercise by it, for a limited time and purpose, of its wider power to appoint a guardian during minority; and as it cannot be disputed that the Appellate Court has power to appoint a guardian of the latter description in reversal or modification of the order of the Court of first instance, the power of the two Courts to appoint a temporary guardian stands upon precisely the same footing. The second ground urged against the Rule cannot, therefore, be sustained.
The third ground refers to the merits of this application. No doubt the opposite party has obtained an order in his favour upon which he is entitled to rely, so as to throw the onus upon the petitioner of satisfying us why that order should not be immediately carried into effect, and why a temporary guardian should be appointed. I do not wish to prejudge the appeal or to place the opposite party in a position of disadvantage when the case comes to be heard. But I am satisfied that having regard to the allegations of neglect, if not ill-treatment, of the minor, and having regard further to the undoubted conflict of interest between the infant on the one hand and Dwarka Nath on the other, concerning the validity of the alleged wills of the father and mother of the girl, it is necessary that the status quo should not be disturbed during the pendency of the appeals preferred to this Court. I have no doubt whatever that the continuance of the temporary guardian will in no way prejudice the infant, while there are good grounds for the contention of the appellant that if immediate effect be given to the order of the Court below, it may not be beneficial to the minor.
Under these circumstances, the Rule is made absolute, and it is hereby directed that pending the disposal of the appeals preferred to this Court, the appointment of Babu Dwarka Nath Roy as guardian of the minor Panchi Barmani be stayed, and that meanwhile, the temporary guardian Babu Ganga Nath Roy, previously appointed by the District Judge, be appointed temporary guardian and do continue to have the charge of the person and property of the minor. The appellant must undertake to expedite the hearing of his appeals with all reasonable despatch.
The costs of this Rule will be costs in the appeals. The hearing fee is assessed at five gold mohurs.
Rule made absolute.