ALIKUTTY Vs. ALIKUTTY

JUDGEMENT

(1.) THE plaintiff-petitioner had filed a suit on a promissory note, case No. 20/56 on the file of the Kavukkode Panchayat Court against the respondent. THE respondent filed written statement denying the plaint claim. Pending disposal of the case the petitioner filed an original petition in the Munsiff's Court, ponnani as O. P. 12/57 for the transfer of the case. We are not concerned, in this petition, with the merits of the allegations made therein. THE Munsiff on 1-4-57 passed orders granting interim stay of the proceedings in the lower court and hearing of the petition was fixed to 20-5-57. THE stay order was despatched by post to the President, Kavukkode Panchayat Court on the same day itself as is seen from the register in the Munsiff's Court. Notice was however not received by the President and therefore fresh notice was ordered and the petition was posted to 26-6-57. Before that date on 8-6-57 the Panchayat Court took up the case for hearing and disposed of the suit ex parte allowing the defendant's contention. As the suit was disposed of O. P. 12/57 for transfer of the suit was not pressed. THE petitioner filed another petition O. P. 20/57 under S. 73 of the Village Courts Act to revise the decree. THE lower court found that the Panchayat Court was not appraised of the passing of the stay order & therefore could not be blamed for having passed the decree and dismissed the petition. This revision petition has been filed against the above said order.

(2.) THE question for consideration in this petition is whether the passing of an order of stay by a superior court forthwith operates to suspend the jurisdiction of the lower court or whether it operates only when the order of stay is communicated to the lower court. As there are conflicting rulings of the different High Courts and as the point involved is one of general importance, our learned brother Raman Nayar, J. , referred this case to a Division Bench and that is how it has come up before us.

(3.) MUKERJEE, J. , made similar observation: "in my opinion that delivery of possession was ultra vires and illegal. No doubt the mere issue of a rule by this court calling upon the opposite party to show cause, why execution should not be stayed, does not operate as a stay of execution, it may also be conceded that a conditional order for stay of execution, for example, an order for stay of execution upon furnishing security to the satisfaction of the court below has no effect on the proceedings, till the condition has been fulfilled, but when, as in the case before us, this court has made an unconditional order for stay of execution, the moment the order is made it becomes operative and suspends the power of the subordinate court to carry on further the execution proceeding". The learned judge quotes the observation of Baldwin, J. , of the Supreme Court of California in Buffandcau v. Edmondson (1851) 17 California 436): "injunction by an appellate court for stay of execution operates as a supersede as to the execution as soon as it is made. The legal authority to proceed with the execution is withdrawn by the act of a competent court, and there is no more legal justification for the execution after the order for stay than there would be for execution after the proceedings have been quashed. No doubt could exist that the order would be effectual without any previous notice to the authority carrying on the execution, because the order for stay has direct effect upon the process itself; although if proceedings are taken to punish the person, who has carried on execution after it had been stayed, it is necessary to show that he had notice of the order because, it is only after such notice that his act would be in defiance of law and in contempt of the court". The learned judge therefore held: "that the delivery of possession made by the court below, after this court had made an unconditional order for stay of execution, was done in excise of its powers and cannot prevent this court from directing the respondents to furnish security, as it would undoubtedly have power to do, if execution had not been completed".