VEMURI SUBBAYYA Vs. BAYYA NAGARATNAMMA AND ORS.

JUDGEMENT

(1.) THE question in this case is, in my opinion, really concluded by the decision of the Full Bench in Venkatachalapati Rao v. Kameswaramma : (1945) 1 M.L.J. 165. An order for stay was obtained from the Appellate Court on the 9th July, 1942, but it was not communicated by the Appellate Court to the trial Court until the latter Court rose for the day. It seems to have been received in the office of the District Munsif after court hours. A warrant had been issued for the attachment of certain movables of the judgment -debtor on the same day, and the finding of the lower Court is that it was done long before the trial Court had notice of the stay order. The order for attachment was issued even prior to the passing of the order of stay by the Appellate Court. The warrant was issued to an amin, and the amin attached certain movables early on the morning of the next day. The question is whether the attachment is valid.

(2.) MR . K. Kameswara Rao, learned advocate for the appellant, argues that the amin and the decreeholder's son were personally aware of the order of stay passed by the District Court on the previous day. This is found against by the lower Appellate Court. Then, it is said that at the time when the attachment was made, the judgment -debtor informed the amin that a stay order had been passed by the District Court on the previous day. This appears to be so, but the question is whether the attachment effected without the warrant having been recalled and while it was in force is valid. Here it cannot be said that the order was communicated by the superior authority, the District Court, even to the District Munsif's Court until the Munsif's Court sat the next day at 11 o'clock. The mere fact that the order reached the office late in the evening of the 9th does not mean that it reached the District Munsif at any time before the office business commenced on the 10th morning. By the warrant which had been issued the previous day the amin was directed to attach certain movables. He would be guilty of gross dereliction of duty if he did not do his duty, and he could refrain from effecting the attachment only if the warrant was withdrawn.

(3.) THE expression "till it is communicated" used by Ayling, J., really means communicated by the superior authority, who passed the stay order. Any doubt on this question is cleared by what Seshagiri Aiyer, J., said that the Court exercising jurisdiction cannot be regarded as having been deprived of it unless the superior authority informs it that that has been done. Thus it is the communication from the superior authority that will deprive the trial Court of its jurisdiction to proceed with the execution. In this case, the superior authority did not communicate to the trial Court until the business of the trial Court began on the 10th July. Therefore the view taken by the lower Court that the authority of the trial Court to execute the decree was not ousted is correct.