P L D 1964 Dacca 316 (PLP)

IDRIS, J.‑This rule is directed against the order of the Subordinate Judge, Dacca, vacating the order staying the pro ceedings of the suit, under section 69 of the East Bengal State Acquisition and Tenancy Act, 1950, henceforth to be called the Act. Plaintiff‑opposite‑party No. 1, United Bank of India, Ltd. instituted the Mortgage Suit No. 15 of 1953 on 5th February 1953, in the Court of the Second Subordinate Judge, Dacca, for recovery of mortgage dues against petitioner‑defendant No. 1, impleading opposite‑parties Nos. 2 and 3 as puisne mortgagees. On the 20th March 1957, the suit was kept stayed under section 69 of the Act, on objection of the petitioner that he was a rent receiver under the provisions of the Act, and that the debt being prior to the 7th April 1948, was liable to be scaled down under section 70 of the Act.

2. Prior to this Mortgage Suit of 1953, there was another mortgage suit by opposite‑party No. 2, that is, the Mortgage Suit No. 88 of 1949 against the petitioner. In that suit opposite party No. 1, was impleaded as a prior mortgagee, but subsequently the name of opposite‑party No. 1, was struck off from the plaint. In that suit also the present petitioner raised the objection to keep the proceedings stayed under section 69 of the Act. The objection was disallowed by the trial Court. The matter came to this Court and an order was passed for keeping the suit stayed under section 69 of the Act. Against that order, opposite‑party No. 2, filed an appeal before the Supreme Court. In that case ft has been laid down by their Lordships of the Supreme Court that in a mortgage suit when mortgaged properties are not liable to be acquired under the Act, and the debtor is not a rent receiver with regard to the mortgaged properties, the debt is not liable to be scaled down and the suit cannot be stayed under section 69 of the Act. It was observed that the debt in that suit was not liable to be scaled down under section 70 of the Act and that section 69 was not applicable [the case of the United Industrial Bank Ltd. v. Mohan Bashi Saha and another (P L D 1959 S C (Pak.) 296)]. The appeal was accordingly allowed and the stay order was vacated in the Mortgage Suit No. 88 of 1949. The judgment was passed by the Supreme Court on the 7th of May 1959.

3. On coming to know of this decision, opposite‑party No. 1 filed this application on the 17th December 1959, for vacating the stay order passed on the 20th March 1957. The application was opposed by the present petitioner, but it was allowed by the trial Court on the 8th April 1960. Hence this Rule.

4. Mr. Upendra Kumar Roy, the learned Advocate for the petitioner, has contended that as a result of alteration of law due to the decision of the Supreme Court, the trial Court was not competent to set aside the stay order which had become final between the parties more than 3 years before the decision by the Supreme Court. It has also been contended that the application was not maintainable as it was not stated in the petition under what provisions of law it was filed. It has been further contended that as the opposite‑party No. 1, did not follow the proper procedure to have the stay order vacated, it could not be set aside by use of the inherent power of the Court under section 151 of the Code of Civil Procedure.

5. Mr. S. R. Pal, the learned Advocate for the opposite- party No. 1, has contended in reply that the decision of the Supreme Court, the highest Tribunal of the country, has the force of law, and that in view of the law laid down by the Supreme Court, the trial Court was competent to vacate the stay order. It has been further contended that the stay order would not come within the definition of the decree, and by the order there was no final decision of the rights of the parties, and that consequently, the Court has jurisdiction to interfere with the stay order and vacate it. It has also been contended that as the opposite‑party No. 1 has no right of appeal against the stay order, nor revision could be claimed as a matter of right, the only way to have the error remedied was by way of invoking the inherent power of the Court under section 151 of the Code of Civil Procedure, and that the Court can exercise this power to vacate mistaken orders with a view to secure ends of justice. Mr. Pal has also argued that for the reason that relevant section was not mentioned in the application, it could not be rejected as it was for the Court to decide with reference to the statement made in the petition and the facts of the case, under what section it would be maintainable. It has further been contended that as the subsequent mortgagee was allowed to proceed with the other mortgage suit as a result of the decision of the Supreme Court, opposite‑party No. 1, would not be put to difficulty if it would be allowed to proceed with this suit.

6. Mr. Roy has referred to the case of Kotaghiri Venkata Subbamma Rao v. Vellanki Venkatarama Rao (I L R 24 Mad. 1), Golamali Jemadar v. Abdul Karim Sarkar (11 C L J 26), Hook v. Administrator‑General of Bengal and others (48 I A 187), Gannabathula Venkatama v. Gannabathula Ranga Rao and others (70 I A 741) and Pandit Kalyan Das v. Babu Kashi Prasad and others (A I R 1938 All, 113), in support of his contention that the Court was not competent to vacate the previous stay order by application of the law laid down by the Supreme Court in another case long after that. In the case of Kotaghari Venkata Subbamma Rao v. Vellanki Venkatarama Rao, it has been laid down by their Lord ships of the Privy Council that: "That ground of amendment must at any rate be something which existed at the date of the decree, and the section does not authorise the review of a decree which was right when it was made, on the ground of the happening of some subsequent event." But in the present case there is no question of amendment of any decree. The same principle was followed in the case of Golamali Jemadar v. Abdul Karim Sarkar. In that case a suit for money was dismissed at first on the evidence on record, but subsequently, the decree of dismissal was set aside, and the suit was decreed on the ground that the defendants' subsequent admission about the liability was proved. The decree was set aside by the High Court on the ground that the learned Sub ordinate Judge acted without jurisdiction in admitting the review, and taking evidence of an admission which was not in existence at the time of the decree. That case has no similarity with the facts of the present case.

7. In the case of Hook v. Administrator‑General of Bengal and others it has been laid down by the Privy Council that when a question at issue between the parties to a suit is heard and finally decided, the judgment given in it is binding on the parties at all subsequent stages of the suit. Its binding force depends not upon section 11 of the Code of Civil Procedure, but upon general principles of law, because if it were not binding, there would be no end to litigation. But in the present case, by the said order passed on 20th March 1957, there was no final decision with regard to any issue regarding the rights of the parties.

8. In the case of Pandit Kalyan Das v. Babu Kashi Prasad and others the question on the issue of pecuniary jurisdiction was once decided in one way by the trial Court. It was decided in different way subsequently in the same Court though by another Judge. It was held that the issue could not be re‑agitated in the same Court in a large stage. But in the present case there was no decision with regard to any issue regarding pecuniary jurisdiction by the order passed on 20th May 1957.

9. In the case of Gannebathula Venkamma v. Gannabathula Kanga Rao and others it has been laid down that a judgment of a District Court passed on the strength of a judgment of a High Court cannot be reviewed on the ground that the latter judgment had been subsequently reversed by the Privy Council. That case was in connection with the review of a decree, but in the present case we are not concerned with the review of any decree. So these cases do not help the petitioner.

10. The mortgaged properties in the instant suit and in Suit No. 88 of 1949 are same. There was no final disposal of the suit by the stay order and the suit was practically pending though stayed. Consequently, the principle laid down by the Supreme Court was applicable to the facts of this case. A Court is competent to vacate a prior order staying further proceedings of a pending suit on the application of the law laid down by the Supreme Court in another case with almost similar facts and circumstances.

11. In the application filed by the opposite‑party for vacating the stay order, the relevant section of the Code of Civil Procedure was not mentioned. That cannot be a ground to reject it. The Court on consideration of the statements made in the application and the facts and circumstances of the case can decide under what provision of law application would be maintain able. In the present case, the trial Court on the consideration of the statement made in the petition and the facts of the case has treated the application as one under section 152 of the Code of Civil Procedure.

12. No appeal was maintainable against the stay order. Remedy by revision could not be claimed as a matter of right. An application for review under Order XLVII, rule 1 of the Code of Civil Procedure would be apparently barred by time Mr. Roy has contended that the final order could be challenged, by a declaratory suit, but there was no final decision of the suit by the stay order. The only way in the facts of the present case was to have the stay order vacated by an application under section 151 of the Code of Civil Procedure. Moreover, a remedy by a declaratory suit could not be a convenient one. The jurisdic tion of the Court to act ex debho justitiae cannot be ousted simply because another inconvenient remedy is also available. This view is supported by the case of Alfred Zahir v. Sirajuddin (A I R 1844 Lah. 165).

13. Opposite‑party No. 1, would be put to a difficult situation, if he would not be allowed to proceed with the instant suit after vacating the stay order, while the opposite‑party No. 2, has been allowed to proceed with the other mortgage suit from the plaint of which the name of opposite‑party No. 1 was struck off. In the facts of the present case to meet the ends of justice, the stay order could be vacated under section 151 of the Code of Civil Procedure. The trial Court had the jurisdiction to vacate the stay order. There is no ground to interfere with the order. The rule is discharged. In the circumstances of the case we pass no order as to costs. HASAN, J.‑I agree. S. B./S. Q./K. B. A. Rule discharged.