1. With all respect to the views of the learned Judges in Hukum Chand Boid v. Kamalanand Singh I.L.R. (1905) .Cal. 927. I prefer to follow the reasoning of an earlier Bench of the same Court, in Bissesswari Chowdhurany v. Horro Sundar Mozum-dar 1.C.W.N. 226, which has been adopted by this Court in Muthuhnmarasami Rowther Minda Nayinar v. Kuppusami Ayyangar I.L.R. (1909) .M. 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 Aiyar, J.
3. Notwithstanding the high regard I entertain for the opinions of the two learned Judges who decided Hukum Chand Boid v. Kamalanand Singh, I.L.R. (1905) .Cal. 927 and to the opinion of Sadasiva Aiyar,. 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 41, 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 to which an appeal has been preferred. 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.
4. As regards the citation of the American authorities, I wish to point out that it appears from what is said in Spilling on Injunction, Vol. II, Section 1718, that the preferring of an appeal operates in some of the States to suspend the powers of the Court below. In that view, it may be justifiable to hold that the lower Court need not be informed of the action taken by the Court of appeal.
5. I agree in holding that Muthukumarasami Rowther Minda Nayinar v. Kuppusami Ayyangar I.L.R. (1909) M. 74 was rightly decided. My answer to the reference is in the negative.
6. I agree with Mr. Justice Ayling.