Mitter, J. - (1.) This is an application for reviewing two orders dated March 9, 1964 passed by this bench and for certain consequential reliefs.
(2.) The facts are as follows: The applicant Indo World Trading Co., Ltd., filed a suit jn this Court being Suit No. 214 of 1955 against a firm known as ChellamTrading Company and an individual by the name of S. V. Pillai for recovery of certain suras of money advanced by the plaintiff to the defendant firm. The defendant No. 2 is alleged to have guaranteed the payment of the dues of the plaintiff to the extent of Rs. 51,000/-. Both the defendants filed written statements. When the suit came on for hearing in the year 1959 the advocate for the defendant No. 2 stated that he had no instruction from his client. As between the plaintiff and the defendant firm certain terms of settlement were recorded in writing. The decree as drawn up bearing date May 6, 1959, shows that on the evidence adduced S.V. Pillai the defendant No. 2 was to pay the plaintiff the sum of Rs 34,264/12/3 with interest and costs. So far as the terms pf settlement are recorded they merely record that the plaintiff would not execute the decree for seven years against the defendant firm and there would be an injunction restraining the defendant firm and its proprietor from disposing of or encumbering in any way the immovable property belonging to the firm or to the proprietor for a period of seven years without making any provision for payment of the said sum of Rs. 34,264/12/3. The decree does not expressly direct the defendant No. 1 to pay any sum to the plaintiff, In June 1963 the present petitioner levied attachment on certain immovable properties belonging to the defendant No. 2 and situate at Tirunelveli in the State of Madras after transferring the decree from this Court. The defendant No. 2 appeared before the executing court and had several adjournments from time to time. On December 14, 1963 S. Vishwanath Pillai the said defendant No. 2 filed a suit in this Court being suit No. 2144 of 1963 for a declaration that the decree dated May 6, 1959 was null and void and not binding on him and for an injunction restraining the present petitioner from taking steps in execution of the decree and for other reliefs. On an application by S.V. Pillai for the said reliefs an order was made by the learned Judge taking interlocutory matters on January 9, 1964 granting an injunction prohibiting the execution of the decree conditionally upon Pillai's giving security to the extent of Rs. 40,000/-Pillai preferred an appeal from the said order and, made an application to this bench asking for stay of execution and for other reliefs. After affidavits had been filed the matter came on for hearing before us on March 9, 1964. After hearing counsel of both sides it was felt that the order appealed from ought to be modified. At the suggestion of counsel appearing for the parties it was directed that on S.V. Pillai's furnishing security of Rs. 15,000/- in cash with the Registrar of this court within eight weeks from date the attachment on his properties would be removed and in default his application would stand dismissed with costs. It was further directed that if the money was deposited costs of the application as also of the appeal would be costs in the suit and the appeal would be treated as on the day's list and disposed of on the terms mentioned. The matter was mentioned before us again on March 11, 1964, when the above order was modified by inclusion of an order for injunction restraining the decree-holder from executing the decree in case the security was furnished in cash as directed. On May 12, 1964 the matter being mentioned again time to furnish the Security money was extended by 10 days from that date and the Registrar of this court was directed to accept a bank draft in lieu of cash if he thought fit.
(3.) During all this period every one appeared to have lost sight of the fact that the executing court was not subordinate to this court and consequently this court was not competent to pass an order directing the removal of the attachment levied on the properties at Tirunelveli although it could have directed the petitioner to take steps for, removing the attachment on security being furnished but that was nqt done. Two orders were drawn up on the basis of what transpired in court before us on March 9, 1964. By the first of these orders it was directed that on Pillai's depositing the sum of Rs. 15,000/- in cash with the Registrar of this Court the attachment on his properties in, Madras would be removed and the decree-holder would be prohibited and restrained from executing the decrees dated May 6, 1959 until further Orders of this court. By the second order it was directed that in the event of Pillai's depositing the sum of Rs. 15,000/- as above the appeal would stand disposed of in terms of the said order. 3a. On May 19, 1964 the present petitioner made an application to this court for variation of the order dated March 9, 1964. It appears that the order of March 9, 1964 relating to the furnishing of the security and the removal of attachment was drawn up, settled and filed on or about May 9, 1964 and a certified copy thereof, was receuved by the respondent herein on May 10, 1964. When the application came on for hearing on June 9, 1964 it was pointed out by learned counsel for Pillai that no relief could be granted in view of the fact that the order complained of had been completed and filed.;