SIVAPPA Vs. PAMPANNA

JUDGEMENT

(1.) A point of considerable importance arises in this appeal. The facts which are necessary to be stated in order to appreciate the same are as follows:

(2.) The appellant before us was the judgment-debtor. The decree which was obtained against him was for the recovery of Rs. 1516-2-0. The decree-holder after obtaining the said decree applied tor execution of the same. The appellant filed objection to the said execution. His objection was that the decree was not executable as the court which passed it had no jurisdiction to pass such a decree. The facts on which the said contention is based are as follows: The original suit was dismissed for default. Thereafter a petition was filed for restoration before the said court. That petition was allowed and the case of the appellant is that it was allowed without any notice to him. Against that order allowing the petition a revision petition was filed to the High Court of Hyderabad. That revision petition was admitted and an interim order of stay was granted on 17-7-1951. It is necessary for the purpose of this appeal to state the exact terms of the said order. It was as follows:

(3.) The learned Advocate for the appellant urged the self same contentions which were urged before the Courts below. It was contended that in view of the order which was passed by the High Court of Hyderabad the Court which passed the judgment in the original suit had no jurisdiction to do so. The learned Advocate for the appellant further contended before us that the said Court lost its jurisdiction immediately on the making of the said order and for that purpose it was not necessary that the order should be communicated to it. In support of that contention he relied on a Full Bench decision of the Lahore High Court reported in Karam Ali v. Raja, AIR 1949 Lah 108 (FB) and on a Special Bench decision of the Patna High Court reported in Liakat Mian v. Padmapat Singh-ania, AIR 1951 Pat 130 (SB). In these cases it was held that if the appellate Court makes an order under Order 41, Rule 5 of the Code of Civil Procedure staying the execution of a decree, then the executing Court loses its jurisdiction immediately on the making of that order and even before the said order Is communicated to it. It should be noted that there are divergent decisions on this point. In the earliest Calcutta decision reported in Bessesswari Chowdhurany v. Hurro Sun-dar Mozumdar, 1 Cal WN 226 it was held that an order of an appellate Court under Section 545 of the Civil Procedure Code (now Order 41, Rule 5 of the said Code) to stay execution of a decree from which an appeal is pending is necessarily in the nature of a prohibitory order, and as such would only take effect when communicated. The view taken in that case was that the appellate Court has nothing to do with the execution of the decree; the execution proceeds under the direction of the Court which made the decree and it has full authority to execute it, and an order under Section 545, does not cancel the order for sale, nor does it purport to undo anything which has been done; its utmost effect is to stop further action in the direction of execution, but it would only have that effect when it reached the Court or person whose duty it was to obey it. In a subsequent decision of the same High Court reported in Hukum Chand Boid v. Kamalanand Singh, ILR 33 Cal 927 a different view was taken on this point. Their Lordships in that case disagreed with the view taken in the earlier decision of the same High Court and observed as follows: