KASARIBADA VENKATACHALAPATI RAO Vs. MADDIPATLA KAMESWARAMMA ALIAS KAMAKSHAMMA

JUDGEMENT

(1.) With all respect to the views of the learned Judges in Hukum Chand Boid v. Kamalanand Singh (1906) I.L.R., 33 Calc., 927 at pp. 934 and 913 I prefer to follow the reasoning of an earlier Bench of the same Court, Bessesswari Chowdhurany v. Hurro Sundar Mozumdar (1892) 1 C.W.N., 226 which has been adopted by this Court in Muthukumarasami Rowther Minda Nayinar. Kuppusami Aiyangar (1910) I.L.R., 33 Mad., 74. 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.

(2.) I would answer the reference in the negative. Seshagiri Ayyar, J.

(3.) Notwithstanding the high regard I entertain for the opinions of the two learned Judges who decided Hukum Chand Boid v. Kamalanand Singh (1906) I.L.R., 33 Calc., 927 at pp. 938 and 943 and to the opinion of Sadasiva Ayyar, J., I am unable to agree with their conclusions. In my opinion, sufficient attention has not been paid by these learned Judges to the provisions of Order XLL, Rule 5. The legislature has enacted by that rule that the Court of first instance still retains jurisdiction to order execution notwithstanding the fact that an appeal has been preferred against its decision. That power can only be taken away by some communication made to it by the Court to which it is subordinate and in which an appeal has been preferred. A Court exercising jurisdiction which is conferred on it in express terms cannot be regarded as having bee.n 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.