LEKSHMANA MALLAN Vs. YAMUNA AMMAL

JUDGEMENT

(1.) The judgment debtor in a decree for redemption of a kanam passed by the Munsiff filed an appeal against it before the District Judge and obtained on 24.9.1951 an order staying delivery till 30.10.1951. Before that date, the decree holder had entered appearance and appointed an advocate to appear for him. On 30.10.1951 the appellant made a fresh application for a further stay which was moved before the court after notice to the advocate of the respondent and the court passed an order staying delivery still further till 30.11.1951. The order for delivery was executed and delivery was actually effected on 31.10.1951. The judgment debtor moved the Munsiff for re-delivery but the Munsiff thought that the execution having been stayed by the appellate court, it was not competent for him to proceed with the application. The party therefore approached the District Judge with an application praying for a re-delivery. It is the order passed by the learned Judge upon this application that is the subject matter of this revision.

(2.) The learned Judge enters into a detailed discussion of the law as to whether under O. 41, R. 5 of the Code of Civil Procedure, an order of stay passed by the appellate court operates from its date or only from the date of its communication to the court below. This is a point on which there is sharp conflict of opinion among the High Courts in India. After referring to the conflict and after taking the view followed by the Patna and Lahore High Courts in preference to the view taken by a Full Bench of the Madras High Court reported in ILR Madras 151 (which is the view of the Allahabad and Travancore High Courts) the learned Judge came to the conclusion that the Munsiff acted without jurisdiction in having delivered the property after the order of stay of delivery had been passed by the District Court, though that order was not communicated to the Munsiff. The learned Judge proceeds to direct the party to file a fresh application before the Munsiff for redelivery, and the Munsiff was directed to grant redelivery.

(3.) The learned counsel for the petitioner contends that the view of the law taken by the lower court is erroneous and that the view taken by the Madras, Allahabad and Travancore High Courts, should have been followed. It is contended that in any event the learned Judge should not have directed the Munsiff to pass an order for re-delivery, but should have left it to its discretion to decide the case afresh according to law in his own way.