S.R. Das Gupta, C.J.
1. A point of considerable importance arises in this appeal. The facts which are necessary to be stated in order to appreciate the same are as follows:
2. The appellant before us was the judgment-debtor. The decree which was obtained against him was for the recovery of Rs. 1516-2-0. The decree-holder after obtaining the said decree applied tor execution of the same. The appellant filed objection to the said execution. His objection was that the decree was not executable as the court which passed it had no jurisdiction to pass such a decree. The facts on which the said contention is based are as follows: The original suit was dismissed for default.
Thereafter a petition was filed for restoration before the said court. That petition was allowed and the case of the appellant is that it was allowed without any notice to him. Against that order allowing the petition a revision petition was filed to theHigh Court of Hyderabad. That revision petition was admitted and an interim order of stay was granted on 17-7-1951. It is necessary for the purpose of this appeal to state the exact terms of the said order. It was as follows:
'The lower Court be asked not to deliver judgment in this case till the disposal of this revision petition. In other respects the proceedings will go on in accordance with law'.
Before this order was communicated to the trial Court it had passed its judgment on 30-11-1951. It is not seriously disputed before us that the statement made by the said Court that the said order did not reach it before it passed its judgment was correct. We shall therefore, proceed in this appeal on the basis that the stay order did not reach the said Court before it passed its judgment. On these facts the judgment-debtor contended that the Court had no jurisdiction to pass the decree in view of the order or stay which had been passed by the High Court. The executing Court overruled the objection of the judgment-debtor. Against that decision, there was an appeal. The lower appellate Court upheld the decision of the executing Court. Hence, the present appeal.
3. The learned Advocate for the appellant urged the self same contentions which were urged before the Courts below. It was contended that in view of the order which was passed by the High Court of Hyderabad the Court which passed the judgment in the original suit had no jurisdiction to do so. The learned Advocate for the appellant further contended before us that the said Court lost its jurisdiction immediately on the making of the said order and for that purpose it was not necessary that the order should be communicated to it.
In support of that contention he relied on a Full Bench decision of the Lahore High Court reported in Karam Ali v. Raja, AIR 1949 Lah 108 (FB) and on a Special Bench decision of the Patna High Court reported in Liakat Mian v. Padmapat Singh-ania, AIR 1951 Pat 130 (SB). In these cases it was held that if the appellate Court makes an order under Order 41, Rule 5 of the Code of Civil Procedure staying the execution of a decree, then the executing Court loses its jurisdiction immediately on the making of that order and even before the said order Is communicated to it.
It should be noted that there are divergent decisions on this point. In the earliest Calcutta decision reported in Beseswari Chowdhurany v. Hurro Sun-dar Mozumdar, 1 Cal WN 226 it was held that an order of an appellate Court under Section 545 of the Civil Procedure Code (now Order 41, Rule 5 of the said Code) to stay execution of a decree from which an appeal is pending is necessarily in the nature of a prohibitory order, and as such would only take effect when communicated.
The view taken in that case was that the appellate Court has nothing to do with the execution of the decree; the execution proceeds under the direction of the Court which made the decree and it has full authority to execute it, and an order under Section 545, does not cancel the order for sale, nor does it purport to undo anything which has been done; its utmost effect is to stop further action in the direction of execution, but it would only have thateffect when it reached the Court or person whose duty it was to obey it. In a subsequent decision of the same High Court reported in Hukum Chand Boid v. Kamalanand Singh, ILR 33 Cal 927 a different view was taken on this point. Their Lordships in that case disagreed with the view taken in the earlier decision of the same High Court and observed as follows:
'It may however be contended on the authority of 1 Cal WN 226 that the order of this Court only takes effect, when communicated to the Lower Court and that proceedings in execution taken in ignorance of the order of stay are not void. It is to be observed that in that case the question as to the validity of the sale in execution arose in a suit between the alleged judgment-debtor and a third party puchaser, whereas in the present case the matter is between the parties themselves. But apart from this, I must respectfully dissent from the decision. An order tor stay is made on the day that it is pronounced and not on that on which it is drawn up or communicated'. Their Lordships further observed as follows: 'No doubt in the case of a prohibitory order by way of injunction, which also operates from the date of the order being made in the sense stated and which is directed to a party and not to a Court, communication is necessary, for the Court will not punish a man for doing what he did not know it was forbidden to him to do. No such considerations here arise. And I can see no reason why the operation of an order of this Court is to be made contingent say upon the due performance of the duties of the Post Office. When the Court has said that execution of a decree is not to take place, from that moment the Court to which application has been made for execution, has no authority to execute it and delivery of possession under the authority of an order, which was not then in force, but had been suspended upon a stay granted by a superior Court, is in my opinion invalid'.
These two decisions, conflicting as they are, have given rise to divergent decisions on this point. The High Court of Madras in a Full Bench decision of that High Court reported in Venkatachelapatirao v. Kamesharamma, AIR 1918 Mad 391 accepted the view taken in the earlier decision of the Calcutta High Court in the case of 1 Cal WN 226 and did not accept the view taken in the later decision of that High Court reported in ILR 33 Cal 927. Their Lordships in that Full Bench case came to the conclusion that an order of an appellate Court staying execution is the nature of prohibitory order to the lower Court which becomes effective only on communication.
A Full Bench of the Allahabad High Court has also taken the same view, in the case of Parsotam Saran v. Barhma Nand, : AIR1927All401 . The Full Bench took the view that a stay order passed by the High Court does not have the effect of nullifying a sale held before the stay order could be communicated either to the Court below or to the officer conducting the sale where the purchaser is not the decree-holder. It should be mentioned that Muk-erji, J., who delivered the judgment in that Full Bench case made it quite clear that when an appellate Court orders stay of execution it only gives a direction. His Lordship observed as follows:
'The execution is not in the hands of the appellate Court. It has to tell the Court of first instance that it is to stay its hand in the execution of its decree. It necessarily follows that if the lower Court has no information of the orders of the appellate Court it cannot stay execution and the execution must proceed'.
It would thus appear from the above observations that their Lordships were accepting the same view which was taken in the Full Bench case of the Madras High Court, viz. that an order staying execution is in the nature of a direction. But their Lordships of the Allahabad High Court in that case made a distinction between the decree-holder-auction-purchaser and an outside auction-purchaser. For the purpose of this appeal it is not necessary to consider whether such a distinction can be made. The fact remains that the Full Bench of the Allahabad High Court took the same view which was taken by the Full Bench of the Madras High Court on the point with which we are concerned in this appeal.
In a subsequent decision of the Calcutta High Court reported in Jatis Chandra v. Kshirode Kumar : AIR1943Cal319 Mitter and Biswas JJ. who decided that case after referring to the various decisions of the different High Courts on this point pointed out that the conflict between the two lines of cases related to question as to when the order in question can be said to have come into operation, was it from the date of the communication or was it from the date when it was passed?
The Full Bench of the Madras High Court, according to their Lordships, was of the view that the operation of a slay order passed by an appellate Court only commences from the time of its communication to the Lower Court, while the Rangoon High Court in the case reported in Ma Ti v. Ma Thit, ILR 11 Rang 410 has taken the view that it operates from the time of its passing and while the Full Bench of the Allahabad High Court : AIR1927All401 had taken a middle course. Having observed as aforesaid, their Lordships held as follows:
'We, however, proceed on the assumption that a stay order made by the appellate Court operates from the time it is passed.
When the appellate Court passes an order for stay, the proceedings are not withdrawn from the lower Court. They still remain pending in that Court, only the matter which is covered by the stay order is kept in abeyance during the period of its operation. The lower Court does not lose jurisdiction over those proceedings. The case would not in any way be analogous to the case where a Court, having no jurisdiction, either territorial or pecuniary or over the subject-matter assumes jurisdiction and passed a decree or order and does any act.
An order passed by a Court, or an act done by it, in contravention of the stay order would be an irregular one, may even be regarded as illegal, but it would only be an order passed or an act done in the illegal exercise of its jurisdiction and so would not, in our judgment be a nullity. It will have to be set aside by appropriate proceedings'. This view taken by their Lordships of the Calcutta High Court in the case reported in : AIR1943Cal319 was subsequently followed in later decision of the same High Court in the case reported in Sm.
Tarulata Devi v. Bibhuti Bhushan Roy, : AIR1953Cal467 .
4. As against these decisions which it must be said, support the respondent before us, there are the decisions of the Full Bench of the Lahore High Court reported in AIR 1949 Lah 108 (FB) and of the Patna High Court in the case reported in AIR 1951 Pat 130 (FB) on which the learned advocate for the appellant relied. The view taken by the Lahore High Court in AIR 1949 Lah 108 (FB) has been subsequently followed in the case reported in Din Dayal v. Union of India, . These decisions proceed on the view taken by their Lordships of the Calcutta High Court in the case reported in ILR 33 Cal 927 and accepted it.
According to these decisions an order of stay made under Order 41, Rule 5 of the Code of Civil Procedure becomes operative the moment it is made and not from the time it is communicated to the Subordinate Courts and that from the moment the stay order is passed the executing Court is deprived of the power of executing the decree and any action taken by it in execution of the decree would be without jurisdiction. The learned advocate, for the appellant strongly relied on these decisions of the Lahore and of the Patna High Court.
5. This being the state of authorities on this point the question is which of them should be accepted by us. In our opinion, for the purpose of this case, it is not necessary to enter into the controversy as to whether or not an order made under Order 41, Rule 5 of the Code of Civil Procedure becomes operative from the moment it is made or whether it becomes operative after it is communicated to the subordinate Court. It should be mentioned that the conflict on this point has arisen because of the different views taken by the different High Courts as to the nature of such an order.
The decisions of the Madras, Allahabad and of the Calcutta High Courts, have taken the view that such an order is in the nature of a prohibitory order, whereas the Lahore and Patna High Courts, in the cases mentioned, have held that such an order is not in the nature of a prohibitory order. Even the Full Bench of the Lahore High Court on which the learned advocate for the appellant mainly relied, in the course of its judgment has made a distinction between an order simpliciter and an injunction or a prohibitory order. Their Lordships in the course of their judgment observed as follows:
'I respectfully agree with those cases where the distinction between a stay order simpliciter and an injunction or prohibitory order has been brought out. A prohibitory order or injunction restrains a party from doing something and is necessarily addressed to the person whose act is intended to be restrained. Such order is not, therefore, effective unless it is communicated. But an order under Rule 5 is not an injunction or a prohibitory order in that sense but an order in the proceedings which give rise to a changed legal position the moment it is made'. The effect of these observations is that if in any case the order in question can be said to be a prohibitory order then it has to be communicated before it can be effective. But their Lordships held that an order made under Order 41 Rule 5 of the Code of Civil Procedure is not an order of this nature and there-fore it does not depend for its validity upon communication. On this basis, the question which arises for our consideration in this case is, what is the nature of the present order. It should be remembered that we are not concerned in this appeal with any order made under Order 41, Rule 5 of the Code or Civil Procedure. The decisions on which the parties in this appeal have relied for their respective cases have, therefore, no direct bearing on this appeal.
6. In this appeal the first question we have to consider is what is the nature of the order, having regard to the terms of it. Is it a prohibitory order? If we come to the conclusion that it is not a prohibitory order, then the other question as to when it takes effect arises. In that event it would have been necessary to consider which of the line of cases, to which I have referred, should be followed as laying down the correct kw on this point. If, on the other hand, we come to the conclusion that this is essentially a prohibitory order then, even on the principle accepted by the Full Bench of the Lahore High Court communication is necessary before it can be effective.
In other words, in such a case the order has to be communicated before it can be given effect to and if anything is done by the Court below before it is so communicated such action on its part would not be a nullity. I have, therefore, to refer once again to the terms of the said order. It states: 'the lower Court be asked not to deliver the judgment in this case till the disposal of this revision petition'. In my opinion, the order in question is clearly a prohibitory order. It asks the Court below not to deliver the judgment. In other words it prohibits the said Court from delivering the judgment.
If it is a prohibitory order then it has to be communicated to the said Court, and if, before it is so communicated, the said Court passes its judgment, it cannot be said that the said judgment was passed without jurisdiction. In my opinion, so tar as this case is concerned there is no difficulty in holding that the judgment passed by the trial Court before this order was communicated was a judgment passed with jurisdiction. On this view of the matter the contention of the learned advocate for the appellant fails. This appeal fails and is, therefore, dismissed with costs.
7. MIR IQBAL HUSSAIN, J. : I agree.
8. Appeal dismissed.