(GADIRAJU) VENKATAPPAYYA Vs. KASARABADA VENKATACHALAPATHI RAO

JUDGEMENT

(1.) The plaintiffs suit is for a declaration that the plaint property belongs to them and is not liable to attachment in execution of the decree obtained by the 1 defendant against the 2nd defendant. Both the Courts have dismissed the plaintiffs suit. The plaintiffs have preferred this second appeal.

(2.) The first point raised by Mr. Somasundaram for the appellants is that there is no valid attachment on the property and, therefore, it cannot be brought to sale in execution of the decree of the 1 defendant. A few facts are necessary to understand the contentions between the parties. The 1 defendant obtained a money-decree in O. S. No. 38 of 1912 in the Munsif's Court against the 2nd defendant, and applied for execution of the decree on 12 March 1914, and an order was passed for attaching the 2nd defendant's property. The 2nd defendant appealed against the decree and an order for staying execution was passed by the appellate Court on 13 March 1914. The stay order was received by the District Munsif's Court on 16th March 1914, and the attachment was completed on 23 March 1914. As the 2nd defendant failed to furnish security as directed by the appellate Court, the stay order was not made absolute but was vacated on 15 April 1914. The 2nd defendant sold the plaint property to the plaintiff on 27 May 1914, and applied to have the attachment raised on 6 October 1914. The High Court finally restored the attachment on 18 December 1917. The plaintiff applied on 26 August 1919, under Order 21, Rule 58 to have the attachment raised or in the alternative to be allowed to be subrogated to the 1 defendant. The claim petition was dismissed on 31 October 1919, and hence the suit. The question is: Is the attachment effected by the District Munsif's Court after the receipt of the order staying execution valid or not? It is clear from the evidence that the stay order was received by the District Munsif on the 16 March 1914. The actual attachment proceedings began only on 17 March 1914, and completed on 23 March 1914. The real question is, What is the effect of the order of the appellate Court staying execution by the executing Court?

(3.) It is contended on behalf of the respondent by Mr. G. Lakshmanna, that inasmuch as the stay order was vacated owing to the default of the 2nd defendant to furnish security it must be considered that the attachment proceedings are valid. When an appellate Court orders the stay of execution pending an appeal, the Court before which the execution proceedings are pending has no power to proceed with the execution after the receipt of the order. It would be opposed to all principle to hold that because the stay order was not perused by the Court executing the decree or that it had no time to pay any attention to it the attachment and other proceedings subsequent to the receipt of the. order are good. The fact that the stay was not made absolute does not affect the question. When an appellate Court pending an appeal orders the stay of an execution that order is good till it is vacated and nothing done in contravention of the order can become good by reason of the order being ultimately vacated. To hold that the dismissal of the execution petition at a later stage would give validity to proceedings which in their inception were iilegal would be opposed to all principle and to all authority. When a proceeding or execution is directed to be stayed by the Appellate Court or the Revisional Court anything done during the trial when the stay order is in force is not only irregular but is altogether void, as the Court has no jurisdiction to do anything after it is prohibited from doing it.