LIAKAT MIAN Vs. PADAMPAT SINGHANIA AND OTHERS

JUDGEMENT

(1.) The case has been refd. to a Special Bench for a decision as to when an order under Order 41 Rule 5, Code of Civil Procedure passed by an appellate Ct. becomes operative, whether it operates from the moment when it is passed or only after communication to the Subordinate Ct.

(2.) This appeal, which is directed against a decree for the recovery of possession of certain property, was filed on 13-4-1950. On the 14th of April by an order under Order 41 Rule 5, an order for ad interim stay of delivery of possession was passed. The necessary requisites were filed on the 17th of April and the order was issued for communication to the subordinate Ct. By some mischance the applt. made an error in naming the subordinate Ct. and the communication was addressed to the Permanent Munsif of Araria instead of the Addl. Munsif of Araria. It reached the Permanent Munsif on the 25th of April and was given effect to in execution case No. 8 of 1949 of his Ct. instead of being given effect to in the execution case of the same number in the Ct. of the Addl. Munsif in which the decree under appeal was being executed. In consequence, the Addl. Munsif delivered possession of the property in suit to the D. H. in June 1950.

(3.) The question at issue has come under the consideration of the Cts. in several reported decisions. The earliest of these is Bessesswari Vs. Horro Sundar, 1 C. W. N. 226, in which property was sold in execution of a decree and purchased by a third party subsequent to a stay order under section 545, Code of Civil Procedure of 1882. Their Lordships held that the stay order was in the nature of a prohibition to the executing Ct. and would, therefore, take effect only when communicated. The executing Ct. therefore, had jurisdiction to sell the property and the sale was a valid one. Exactly the opposite view was taken by Woodroffe and Mookerjee JJ. in Hukum Chand Vs. Kamalanand, 33 Cal. 927 : (3 C. L. J. 67) , in which the decree, as here, was for recovery of possession. While distinguishing the case of Bessesswari, (1 C. W. N. 226), on that ground that the question arose between the J. D. and a third party purchaser, their Lordships went on expressly to dissent from the decision in that case. They agreed that a prohibitory order, for instance an injunction, will operate as a prohibition only from the moment of communication but took the view that an order of stay is not such an order and, from the moment when it is made, suspends the power of the subordinate Ct. to carry on further execution proceedings. In Muthukumarasami Vs. Kuppusami, 33 Mad. 74 : (3 I. C. 82) , a case of an execution sale, their Lordships folld. the case of Bessesswari, (1. C.W.N. 226), in preference to that of Hukum Chand Vs. Kamalanand, (33 Cal. 927 : 3 C. L. J. 67) , but without any discussion. In Ramanathan Vs. Arunachellam, 38 Mad. 766 : (AIR (1) 1914 Mad. 261) , another case of execution sale, Sadasiva Ayyar J. expressly differed from the decision is Muthukumarsami Rowther's case, (33 Mad. 74 : 3 I. C. 82), and expressed the view that unless otherwise provided in the order itself the order operates immediately and suspends from that moment the jurisdiction of the Subordinate Ct. to proceed with the execution of the decree under appeal. The facts of the case were that a telegram waj sent to the Vakil at Madura informing him of thes order of stay and the Subordinate Ct. of Ramnad was moved by a petition accompanied by an affidavits to stay the sale but it refused to act on the telegram in the absence of an official communication. Spencer J. made this a ground for distinguishing the case of Muthukumarsami Rowther, (33 Mad. 74 : 3 I. C 82). In his opinion, the Subordinate Ct. acted injudiciously in not postponing the sale in order to ascertain the truth of the information received and he treated this as a reason for setting aside the sale. At the same time he observed that there was much force in the observation of Woodroffe J. in Hukum Chand Vs. Kamalanand, (33 Cal. 927 : 3 C. L. J. 67) "