VEMURI SUBBAYYA Vs. BAYYA NAGARATNAMMA

JUDGEMENT

(1.) The question in this case is, in my opinion, really concluded by the decision of the Full Bench in Venkatachalapati Rao V/s. Kameswaramma (1945) 1 M.L.J. 165. An order for stay was obtained from the Appellate Court on the 9 July, 1942, but it was not communicated by the Appellate Court to the trial Court until the latter Court rose for the day. It seems to have been received in the office of the District Munsif after court hours. A warrant had been issued for the attachment of certain movables of the judgment-debtor on the same day, and the finding of the lower Court is that it was done long before the trial Court had notice of the stay order. The order for attachment was issued even prior to the passing of the order of stay by the Appellate Court. The warrant was issued to an amin, and the amin attached certain movables early on the morning of the next day. The question is whether the attachment is valid.

(2.) Mr. K. Kameswara Rao, learned advocate for the appellant, argues that the amin and the decreeholder's son were personally aware of the order of stay passed by the District Court on the previous day. This is found against by the lower Appellate Court. Then, it is said that at the time when the attachment was made, the judgment-debtor informed the amin that a stay order had been passed by the District Court on the previous day. This appears to be so, but the question is whether the attachment effected without the warrant having been recalled and while it was in force is valid. Here it cannot be said that the order was communicated by the superior authority, the District Court, even to the District Munsif's Court until the Munsif's Court sat the next day at 11 o clock. The mere fact that the order reached the office late in the evening of the 9 does not mean that it reached the District Munsif at any time before the office business commenced on the 10 morning. By the warrant which had been issued the previous day the amin was directed to attach certain movables. He would be guilty of gross dereliction of duty if he did not do his duty, and he could refrain from effecting the attachment only if the warrant was withdrawn.

(3.) Mr. Kameswara Rao urges that it is not necessary that the order of the superior Court should be officially communicated to the lower Court, and that it is enough if the trial Court is informed by any one of the fact that the superior Court has ordered the stay. This question is concluded by the decision in Venkatachalapati ordered the stay. This question is concluded by the decision in Venkatachalapati Rao V/s. Kameswaramma (1917) 33 M.LJ. 515: 41 Mad. 151 (F.B.). There the attachment was effected after the stay order was passed by the Appellate Court and before it was communicated to the trial Court. An alienation was made after the attachment was effected; and the question was whether the alienation prevailed over the claims enforceable under the attachment. If the attachment had not been validly effected, then the alienation would have prevailed. The question was answered by the Full Bench holding that the attachment was valid and they dissented from the view taken by the Court in an earlier decision in Ramanatha V/s. Arunachala (1913) 26 M.LJ. 275 : 38 Mad. 766. In the earlier case it was held that the moment the appellate Court passed the order of stay, the trial Court became functus officio. That decision has been definitely overruled by the Full Bench in the latter case. Further, Ayling, J., who delivered the leading judgment of the Full Bench says this at page 154, I regard an order of an Appellate Court staying execution as in the nature of a prohibitory order to the lower Court which becomes effective only on communication. Till it is communicated, steps in execution taken by the lower Court must be treated as legally valid. Seshagiri Aiyar, J., said this, A Court exercising jurisdiction which is conferred on it in express terms, cannot be regarded as having been deprived of it unless the superior authority informs it that that has been done. This principle of jurisprudence should not be departed from unless there is any legislative provision to the contrary.