P L D 1949 Lahore 100 (PLP)

"It may, however, be contended on the authority of Bessesswari Chowdhurany v. Hurro Sundar Mozumdar 1 Cal. W N 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 add a -third party purchaser, whereas in the present case the matter is between the parties. But apart from this I must respectfully dissent from the decision. An order for stay is made on the day that it is pronounced and not on that on which it is drawn up (cf. In re The Risca Coal and Iron Company (1861) 31 L J Ch. 429 or communicated. 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." Mookerjee J. went into the matter in more detail and said :- "In my opinion that delivery of possession was ultra vires and illegal. No doubt the mere issue of a rule by this Court calling upon the opposite party to show cause, why execution should not be stayed, does not operate as a stay of execution, it may also be conceded that a conditional order for stay of execution, for example, an order for stay of execution upon furnishing security to the satisfaction of the Court below has no effect on the proceedings, till the condition has been fulfilled, but when as in the case before us this Court has made an unconditional order for stay of execution, the moment the order is made it becomes operative and suspends the power of the Subordinate Court to carry on further the execution proceeding. I respectfully dissent from the decision of this Court in Bessesswari Chowdhurany v. Hurro Sundar Mozumdar 1 Cal. W N 226, where the learned Judges appeal, to have held broadly and without any qualification that an order of an Appellante Court to stay execution of a decree, against which an appeal is pending, is in the nature of a prohibitory order and as such would only take effect, when communicated. It is no doubt, true that if proceedings have to be taken against any person for contempt of the authority of this Court in proceeding with execution after an order for stay has been made, it would be essential to prove that such person has disobeyed or acted in contravention of the order with knowledge that it had been made but the operating of the order is not postponed till it has been communicated to the Subordinate Court or the party intened to be affected by it. As was pointed out by Baldwin J. in delivering the judgment of the Supreme Court of California in Buffandeau v. Edmandson (1851) 17 California 436, injunction by an Appellate Court for stay of execution operates as a supersede as to the execution as soon as it is made. The legal authority to proceed with the execution is withdrawn by the act of a competent Court, and there is no more legal justifica tion for the execution after the order for stay than there would be for execution after the proceedings have been quashed." The learned Judge referred to some other American and English cases and to sections 173 to 178 of Spelling on Injunctions, Volume I, in support of the view taken by him and held that the executing Court's power to proceed further in execution is taken away from the moment the order of stay is made and that a subsequent sale held in ignorance of the stay order is void and without jurisdiction. In the next Calcutta case Sati Nath Sikdar v. Ratanmani Naskar 15 C L J 335 where the executing Court was apprised of a stay order by affidavit and by the production of s letter from the counsel who had obtained the stay order from the High Court addressed to the counsel for the party in the executing Court, it was held that the Munsiff, who ignored the stay order and proceeded with execution, was guilty of contempt of the High Court and that the execution held in contraven tion of the stay order was without jurisdiction. The first case in the Madras High Court is Muthukumarasami v. Kuppusami I L R 33 Mad. 74, in which Sir Arnold White, C. J. and Abdur Rahim J., in a brief judgment followed the earlier Calcutta case in Bessesswari Chowdhurany v. Hurro Sundar Mozumdar 1 Cal. W N 226 in preference to the subsequent case in Hukum Chand Boid v. Kamalanand Singh I L R 33 Cal.

927. They were not prepared to differ from the Subordinate Judge's view that the sale was an irregularity, but preferred to rest their judgment on the ground that the order of stay became effective only when communicated to the executing Court. In the next Madras case Ramanathan Chetty v. Arunachellam Chetty I L R 38 Mad. 766, the sale in execution of a money decree had taken place before the stay order on the appeal from the decree had been communicated. Sadasiva Ayyar and Soencer JJ. discussed the position at some length and differing from the decision in Bessesswari Chowdhurany v. Hurro Sundar Mozumdar 1 Cal. W N 226, and Muthukumarasami v. Kuppusami I L R 33 Mad. 74 and accepting as correct the decision in the three subsequent cases of the Calcutta High Court in Sati Nath Sikdar v. Ratanmani Naskar 15 C L J 335, Hem Chandra Kar v. Mathut Santhal 16 Cal. W N 1031 and Hukum Chand Boid v. Kamalanand Singh I L R 33 Cal. 927 and of the Allahabad High Court in Mian Ian v. Man Singh I L R 2 All. 686, held that the stay order suspends the power and jurisdiction of the lower Court to conduct further proceedings from the moment the order of Superior Court is passed and that any pro ceedings taken contrary to such order are without jurisdiction. The next Madras case is the Full Bench decision in Kasaribada 1Jenkatachalapati Rao'v. Maddipatla Kameswaramma I L R 41 Mad. 151 in which the question "where subsequent to an interim order for stay of execution made by the Appellate Court without notice to the decree holder, but before its communication to the Court of first instance, an order for attachment has been made by the latter Court, is the order of attachment void and ineffectual as raving been made without jurisdiction ?" was answered by Ayling, Seshagiri Ayyar and Bakewell JJ. in the negative. The facts of that case were somewhat peculiar. The defendant on an appeal from a money decree had obtained a stay order but before this order reached the executing Court attachment of some property of the defendant had been effected and the defendant had sold the property after the attachment but before the stay order was subsequently vacated by the Appellate Court. It was. held that the attachment was not without jurisdiction though it had been effected after the making of the stay order. The learned Judges followed the Calcutta decision in Bessesswari Chowdhurany v. Hurro Sundar Mozumdar 1 Cal. W N 226 and the Madras case in Muthukumarasami v. Kuppusami I L R 33 Mad. 74 in preference to the decision in Hukum Chand Boid v. Kamalanand Singh I L R 33 Cal. 927, Seshagiri Ayyar J. distinguishing the American authorities cited by Mookerjee J. in Hukum Chand Boid v. Kamalanand Singh I L R 33 Cal. 927 on the ground that under the American Law the mere preferring of an appeal operates in some of the States to suspend the power of the executing Court. This Full Bench case is not a fully argued out case and merely states the preference of the learned judges for the view taken in Bessesswari Chowdhurany v. Hurro Sundar Mozumdar 1 Cal. W N 226 that an order of stay by the Appellate Court is in the nature of a prohibitory order to the executing Court which becomes effective only on communication. The latest Madras case Vemuri Subayya v. Bayya Nagarathamma A I R 1945 Madras 391 merely follows Kasaribada Venkatachalapati Rao v. Maddipatla Kameswaramma I -L R 41 Mad.

151. These cases and some others were considered by Mitter and Biswas JJ. in Jatis Ghandra Pal Choudhury v. Kshirode Kumar Pramanick A I R 1934 Calcutta 819, who did not consider it necessary to decide the point but proceeded on the assumption that a stay order made by the Appellate Court operates from the time it is passed, though Mitter J. considered the view of Mukerji J. in Parsotam Saran v. Brahma Nand I L R 50 All. 41 at the bottom of page 46 and the top of page 47 of the Report to be more acceptable. The actual decision in this case proceeded on the ground that proceedings taken by the executing Court in contravention of an order of stay by the Appellate Court but before its communication to the executing Court, even if irregular or illegal, are not a nullity and that until they are set aside in appropriate proceedings taken for the purpose, they cannot be ignored in a subsequent suit or other proceedings. In the Allahabad High Court there are two cases on the point. In the earlier case of Nand Kishore v. Shadi Ram A I R 1926 All. 457 Kenhaiya Lal and Boys JJ. held that an execution sale held after a stay order by the Appellate Court but before its communication to the executing Court is illegal, Kanhaiya Lal J. observing: "A sale held in ignorance of the order for stay passed by an Appellate` Court is without jurisdiction and must be set aside. An order to stay passed by an Appellate Court is an order to a Subordinate Court to stay its hands, and in that sense it bears no analogy to an injunction, which is an order to a party to refrain from doing a certain act. The former takes effect from the time of its pro nouncement, and its communication is only needed to make it known to the Court which is directed to carry it out. Its force is not suspended till it is formally communicated to the Court concerned. An injunction is, however, binding on the party to whom it is issued from the time it is communicated, for there' can be no contempt unless the party concerned knows what he is required to do or to abstain from doing, and a Court cannot punish a man for doing what he did not know he was forbidden to do." Both the learned Judges accepted the reasoning in Hukum Chand Boid v. Kamalanand Singh I L R 33 Cal. 927 and Ramanathan Chetty v. Arunachellam Chetty I L R 38 Mad. 766 as sound and differed from the contrary view taken in other cases. Boys J. quoted with approval the following observation of Straight and Tyrell JJ. in Sant Lai v. Umrao-un-Nissa I L R 12 All. 96 :- "The sale was an illegal sale just as much as if a Court tried a cause in respect of a subject-matter, which, before the date of the trial, had been removed from its jurisdiction by an authority having power to deprive it of such jurisdicition" and did not overlook the fact that in the Allahabad case on which he was relying the stay Order had been passed by the executing Court itself, a distinction which, for the reason stated by him, appeared to be immaterial. In the subsequent Full Bench case, Parsotam Saran v. Barhma Nand I L R 60 All. 41, Mukerji J, who wrote the leading judgment the other two judges (Walsh and Banerji JJ.) merely ageeing with him, preferred to follow the view that a stay order is a direction to some body and that, since execution is in the hands of the Court of first instance, the stay order is ineffective unless it is communicated to it. The learned Judge drew a distinction between cases where the decree-holder himself purchases the property and those where the purchaser is a third party acting in good faith, the former being bound by all the orders passed in the case but not the latter. In our own Court there are two cases which, though relevant, are undoubtedly distinguishable. In Kahan Chand v. Mst. Jawandi 41 I C 752 where it was doubtful whether possession in execution was delivered before or after the stay order, Broadway J., referred to the Madras case in Ramanathan Chettpy v. Arunachellam Chetty I L R 38 Mad. 766 with approval though he held the delivery of possession to be invalid on the ground that possession had not been delivered in accordance with law. The subsequent case, Bodh Raj v. Amir Chand A I R 1943 Lah. 349, which is a Full Bench case, is also distinguishable but the principle laid down therein is applicable to the kind of cases we are dealing with. The facts in that case were as follows :- In execution of a mortgage decree, certain land belonging to the judgment-debtor was to be sold and the sale was to be effected through the Collector as required by section 141, Punjab Land Revenue Act. The Collector had been accordingly directed to sell the land and the sale was fixed for 28th October 1938 by the officer who had been instructed by the Collector to hold the sale. On 14th October 1938, the Court received intimation from a Debt Conciliation Board with reference to certain proceedings pending before it and the Court directed the Collector to suspend the sale as required by section 25, Punjab Relief of Indebtedness Act. The Collector received this order of the Court on 21st October 1938, but intimation about the suspension of the sale did not reach the officer conducting the sale in time, with the result that the land was sold on the date fixed and was purchased by a third party. The sale was sought to be upheld as valid on the ground that the officer conducting the sale was an agent of the Court and that since revocation of his authority had nor been communicated to the purchaser, the prin cipal, namely, the Court ordering the sale was bound by the act of its agent and that, therefore, the sale was valid. Dealing with this question Bhide J. said :-- " I am of opinion that though the position of a ministerial officer conducting a sale on behalf of an executing Court is analogous to that of an agent, there are material points of difference between the relationship of an ordinary principal and agent and that of the Court and its ministerial officers. It is well established that the authority of an agent, whether express or implied, must be taken to be confined within the limits of the powers of the principal. For instance, in the case of a corporation, its agent cannot have authority, whether express or implied, to do any act on behalf of the corporation which is ultra vires. Similarly, in the case of a Court, which is also the creation of a statute like a corporation, even though its ministerial officers may be looked upon as its agents within the scope of their duties, their powers must be held to be limited by the powers of the Court itself. Consequently, in the case of a ministerial officer conducting a sale in execution, it must, I think, be held to be implied condition that the authority of the ministerial officer to conduct the sale shall cease as soon as the order for sale is vacated or the sale is stayed by the Court for any reason. When any such order is passed, the Court itself had no power to sell the judgment-debtor's property until or unless the order is set aside by itself or a superior Court according to law. The power of the ministerial officer, as the agent of the Court, can go no further in such circumstances. When an ordinary principal wishes to revoke the authority given to an agent to do any act, there is merely a change of intention, but no lack of legal authority in him to do the particular act. The position of a Court passing an order staying a sale is thus different from that of an ordinary principal. The position would seem to be analogous where the authority of the principal ceases owing to operation of law, e.g., by his death. In such a case it has been held that the authority of the agent is determined as soon as death takes place even if the agent had no notice." The question therefore, was answered in the negative. This case is distinguishable from the one we are dealing with both on facts and as regards the law applicable but it is a clear authority for the proposition that if, before the sale which has been validly ordered, the executing Court is deprived of the authority to sell, the subsequent sale held in pursuance of the original direction is void. There remain now only two more cases to be noticed, i.e., the case of Ma Ti v. Ma Thit I L R 11 Rang. 410 and that of Rudrappa Virappa v. -Bashettappa Chenbasappa I L R 52 Bom.

290. The facts in the former case were similar to those in the Allahabad Full Bench case inasmuch as the question falling for decision in that case was whether a, sale in favour of a third party which had taken place after a stay order by the executing Court had been made but before that order had reached the sale officer was valid. The learned judges (Baguley and Mosely JJ.) differing from the Full Bench case of the Allahabad High Court in Parsotam Saran v. Barhma 91 (and I L R 50 All. 41, followed the earlier Allahabad case Sant Lal v. Umrao-un-Nissa I L R 12 All. 96, and held the sale to be invalid. In this case, again a distinction was drawn between the relationship of a ministerial officer to the Judge of the Court and that of a commercial agent to this principal. In the Bombay case the question was only incidentally referred to and the decision of Madgavkar J. proceeded o other grounds, namely, that an appeal under section 47 was incompetent in that case and that the auction-purchaser who had purchased the property in execution of a decree, the execution of which had been stayed by an order of the appellate Court which had not been communicated before the sale took place, was a necessary party. In dealing with the present point, the learned Judge observed :- ."It is difficult to evolve any definite principle from the decided cases. It appears to us that a great deal depends on the nature of the order, the question of good faith and other facts. If, for instance an order of stay was obtained in time from a competent Court or authority, but was dishonestly delayed in transmission by the action of the decree-holder, the sale would hardly be confirmed. If on the other hand the order was obtained too late for transmis sion, the risk would be the judgment-debtor's and he would find it difficult to have the sale set aside." In this state of the authorities the question has to be determined on first principles and on the construction of the relevant statutory provision. If, as a matter of construction, it be held that the jurisdiction of the execut ing Court is taken away the moment an order of stay is passed by the appellate Court under rule 5 of Order 41, that construction must be given effect to unless on principle or precedent there are in superable difficulties in accepting that construction and a different construction is reasonably possible. Rule 5 enacts two distinct provisions, the first directing that an appeal by itself does not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate, Court may order, and the second providing that execution of a decree, shall not be stayed by reason only of an appeal having been preferred from it but that on sufficient cause being shown the appellate Court may, order stay of execution of the decree. Evidently, the first rule refers to cases where further proceedings under a decree or order, an appeal from which has been preferred, are taking place, and directs that such further proceedings shall not be stayed by the Court passing the decree or order except to the extent that the appellate Court orders. This portion of the rule will obviously apply where a decree or order is not a final decree or order and some further proceedings under it have to be taken before the rights of the parties are finally adjusted. For instance, in certain classes of suits, e.g., suits for sale, foreclosure, partition or rendition of accounts, the Court may or has to pass a preliminary decree before the rights of the parties are determined by the final decree to be passed after some further proceedings are taken. In such cases, under rule 5, the Court passing the preliminary decree will continue to take further proceedings with a view to passing the final decree and the mere filing of an appeal from the preliminary decree will not have the effect of staying such proceedings. But the rule gives to the appellate Court the power to stay further proceedings under the preliminary decree and when such order is made, the appeal will operate as a stay of further proceedings to the extent the order so directs. In the same way, the execution of a decree is not stayed by reason only of an appeal having been preferred from the decree, but the appellate Court has the power to order stay of execution for sufficient cause. Here again, though the filing of the appeal from the decree sought to be executed does not operate as a stay of execution proceedings, when an order by the appellate Court for stay is made, it will operate as a stay of execution proceedings. Thus both the provisions enact two different general rules which are followed by two different exceptions, the general rule in either case being that an appeal shall not operate as a stay of further proceedings under the decree appealed from. But when a case comes within the exception, the order of stay to the extent that it is within the exception, suspends the operation of the general Rule and automatically brings about a stay of those proceedings protanto. The learned counsel for the appellants appears to think that the word `order' in the expression 'order stay of execution' necessarily implies that the order must be addressed and communicated to some body. Of course, all orders are intended for communication to some body but that is a wholly different proposition from the one whether the existence of the order itself has the effect of ousting the jurisdiction of the executing Court. The word 'order' in the expression 'the appellate Court may order' in the first part of the rule is definitely an intransitive verb having no object. In the latter part of the rule, however, this word in the expression 'order stay of execution' is a transitive verb but the object of it is not the Court or the party but stay of execution. On a purely grammatical construction of this rule, therefore, it must be held that the jurisdiction of the Court to take further proceedings or execution proceedings under a decree appealed from is excluded the moment an order staying such proceedings is recorded, and that this exclusion does not depend on anything other than the making of the order. It is true that the execution of a decree is a matter resting entirely with the executing court and not with the appellate Court, but this position is correct only where there is no direction under rule 5 which clearly gives to the appellate Court the power to make an order affecting execution. When such order is made, the jurisdiction of the executing Court in respect of the matters covered by that order is superseded and remains suspended as long as that order exists. Such order is an order in the lis, by which the parties and the executing Court are both bound and any order by the executing Court inconsistent with that order is a nullity because ex hyphothesi the order relates in the language of the constitutional law to a field that has already been occupied by the superior Court. In several respects the appeal revives and resurrects the suit and in a number of cases the appeal itself has been held for certain purposes to be continua tion of the suit. It arrests res judicata and keeps alive lis pendens though it does not kill the decree or make ineffective any proceedings taken under the decree in the absence of an order of the appellate Court to the contrary. In fact, rule 5 recognises the existence and validity of the decree unless it is reversed on appeal and allows further or execution proceedings to be taken under it, but all this is subject to the power of the appellate Court to order stay. It gives to the appellate Court limited and conditional powers of disallowing further proceedings under the decree but such powers, when exercised, have the effect of taking away from the lower Court powers to the extent that they have been exercised by the appellate Court. I respectfully agree with these cases where the distinction between 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 pct) is intended to be restrained. Such order is not, therefore, effective unless it is communicated. But an order under Rule 5 is not and 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. As pointed out by Woodroffe and Mookerjee JJ. in Hukum Chand Boid v. Kamalanand Singh I L R 33 Cal. 927, the question of communication of an order arises only in these cases where absence of the knowledge of that order is under the substantive law a defence to any action proposed to be taken on the ground of disobedience of that order. But no question of disobedience of an order arises in cases under Rule 5 because that Rule relates to the respective powers of the appellate Court and the lower Court and unlike Rule 2 (3) of Order 39 has nothing to do with the disobedience of any order. It may be that the executing Court being not apprised of the order of the appellate Court feels itself justified to proceed in execution, but that would not make the proceedings taken by that Court good if by an anterior order of the appellate Court, not communicated, its jurisdiction had been taken away. The question whether the executing Court should or should not proceed with execution when no stay order by the appellate Court has been received by it is wholly different from and should not be confounded with the question whether its jurisdiction to proceed with execution has or has not, as a matter of law, been taken away. Naturally the Court will proceed until it is apprised of the stay order and will require the party, resisting execution on the ground that a stay order by the appellate Court has been made, to produce that order, but this does not mean that the proceedings taken by it in ignorance of the stay order must be held to be with jurisdiction if as a matter of fact the stay order had been made though it was not communicated to it. Instances are easily conceivable where the jurisdiction of a Court depending on the existence or non-existence of a fact it expects or requires one of the parties to prove that fact like any other fact in the cause. If owing to the inability of the party to prove requisite fact the Court does something which in fact it has ceased to be competent to do, will the thing done in ignorance of the fact taking away its jurisdiction have any legal validity ? Suppose a Magistrate of the second class records the confession of an accused person after the notification empowering him to record confessions has been cancelled, but before the notification comes to his notice, can it be contended in such a case that the confession will be admissible in evidence because it was recorded by the Magistrate in ignorance of the restriction on his powers ? I have no doubt that the statutory Rule on which the answer to the question referred must depend is absolute in its tenor and no such qualification as is suggested by. the learned counsel for the appellants is to be found in it. And if this be the plain meaning of Order 41 Rule 5, then any argument founded on inconvenience or hardship becomes irrelevant, because such considerations are material only where the words of a statute are capable of bearing two different meanings, the rule in such cases being that the Court will lean against a construction which leads to hardship, inconvenience or absurdity. But I can see no prac tical hardship, absurdity or inconvenience if this provision is assigned its natural grammatical meaning. Where the decree, executed in ignor ance of the appellate Court's order is a decree for possession, the Court is possessed of ample powers of restitution and no hardship to anyone is involved. If the decree is a decree for money and the property of the judgment-debtor is attached and sold in ignorance of the orders there is no hardship to the auction-purchaser if he is required to restore the property to the party entitled to it by the sale being set aside. The auction-purchaser derives his title to the property only under the law of execution, and it is well settled that the Court gives him no warranty of title and that all that he acquires under the Court sale is the right, title and interest of the judgment-debtor and that too if the sale in his favour is in conformity with the statutory provisions by which such sales are governed. It frequently happens that an innocent purchaser is deprived of the property purchased by him at a Court sale without himself being in any way a party to any irregularity or fraud and some times he loses the property irrespective of any fraud or irregularity merely by the judgment-debtor's depositing the amount of the decree in Court. The case of hardship imagined by Mitter J. at page 325 of the Report of dabs Chandra Pal Chaudhury v. Kshirode Kumar Parmanick in A I R 1943 Cal. 319, does not seen to be very apposite, inasmuch as the matter being one that relates to the execution, discharge or satisfac tion of the decree and the auction-purchaser being the representative of a party to the suit, no suit would be competent and res judicata may also be pleaded as a defence to the suit. I can, therefore, see no injustice or inconvenience if a sale in favour of an auction-purchaser is set aside or treated void on the ground of its having been held after a stay order was made. On the other hand, if communication to the executing Court were made a condition precedent to the operation of an order of stay, great inconvenience will result. In this connection, the observations of Westburry L. C. in In re. The Risca Coal anal Iron Company (1861) 31 L. J. Ch. 229 may profitably be referred to. The question in that case was whether under the 33rd section of the statute, 12 and 13 Vict C. 108, which provided "that no notice of motion for a rehearing before the Lord Chancellor of Great Britain or Ireland respectively, of any order of the Master of the Rolls in England, or Ireland, or of any of the Vice Chancellors in England under the said act or in this act, shall be given after the expiration of three weeks after the order complained of shall have been made", time for the notice began to run from the date the order was pronounced or from the date the order was drawn up. Dealing with the question of inconvenience that would arise if time began to run only from the date the order was drawn up, the Lord Chancellor observed :- ' I think, therefore, I shall abide by rule of convenience ; certainty in the matter is convenience ; certainty you attain by abiding by the date of the order ; uncertainty you introduce when you depart from that date. A variation from the common rule of abiding by the record is introduced by a departure from that date. Great laxity of practice would be introduced and encouraged by a departure from that date." The facts of the case in which these observations were made are of course wholly distinguishable but I have referred to these observations in order to show the inconvenience that would result if the validity of a stay order were made to depend on the communication of the order to the executing Court. The question referred to the Full Bench uses the word 'communication' but communication is a question of fact and has not been defined anywhere. Of course, the usual way of communicating an order to the lower Court is by an official letter which when received by the executing Court, will be presumed to be genuine if it bears the seal of the Court and the signature of the competent officer, because in such cases the executing Court will be bound to take judicial notice of the seal of the Court and the signature of the issuing officer. But such order may, by collusion between the party interested and the ministerial officer of the appellate Court or the executing Court, be suppressed or its transmission delayed by the court of post and thus important steps in execution may be taken between the date of the making of the order and its communication. Again, an order may be communicated, as is the practice in urgent cases, by telegram, but in such cases the law being that the Court shall not raise any presumption as to the identity of the sender of a telegraphic message, the executing Court may proceed in execution and deliver possession of the property decreed to the party entitled or order attachment and sale of the judgment-debtor's property. Again, what wpuld be the position if the order of the appellate Court does not reach the executing Court by post or telegram but counsel-makes a statement from the Bar or puts in an affidavit that the order of stay has been made? Can it in such a case be held that the order has been 'communicated' to the executing Court? There is no rule of law by which a Court is bound to accept a statement from the Bar or an affidavit of a party and the word `communication' is hardly applicable where the executing Court is apprised by a party of the existence of a stay order without such order having been officially com municated to it vide Vemuri Subayya v. Bayya Magarthamma (A I R 1945 Mad. 391). It would be too much to hold that in the circumstances supposed the Court still retains the jurisdiction to execute the decree but at the same time it seems to be clear to me that the stay order cannot be said to have been `communicated'. The logical result of accepting the interpretation sought to be put by the learned counsel for the appellants on Rule 9 would be that the jurisdiction of the executing Court to execute the decree will depend upon that Court's state of mind, namely, whether it does not believe the information which is supplied to it officially or otherwise that a stay order has been made by the appellate Court. I, therefore, consider that any construction of Rule 5 which would make its operation depend upon communication and not on the making of the order would lead to considerable inconvenience and uncertainty. On the contrary, if we were to follow the simple rule that the making of the stay order has the effect of depriving the executing Court of its jurisdiction to execute the decree, no injustice, inconvenience or uncertainty would result. To summarise, the state of authorities is that the Madras High Court and the Allahabad High Court, after their Full Bench decisions, follow the contrary interpretation while the Calcutta High Court takes the view which we favour and is shared by the Rangoon High Court. The Bombay High Court has made some obiter observations on the question but has not directly decided the point. The ratio decidendi in the Full Bench cases of the Madras and the Allahabad High Courts is that stay orders under Rule 5 are in the nature of prohibitory orders which become effective on their being communicated to the Court. I am unable to discover any warrant for any such assumption which is not justified by the plain terms of Rule 5 which merely uses the word `order' in one place as an intransitive verb and in the other as a transitive verb having no person for its object. The Rule speaks of an order and not a prohibitory order ; in fact, the term prohibitory order is used in law in the same sense as a prohibitory injunction as distinguished from a mandatory injunction, the definition of which as it occurs in Order 39 Rules 1 and 2 of the Code of Civil Procedure and section 53 of the Specific Relief Act, is in phraseology, wholly different from that employed in Rule 5 which uses the word 'order' simpliciter. In my humble judgment, the Madras and the Allahabad High Courts read something into this Rule which does not exist there, and in none of the cases which take the opposite view has the argument of Woodroffe and Mookerjee J. in Hukam Chan& Boid v. Kamalanand Singh I L R 33 Cal. 927 been met. The basic authority for the contrary view, namely, Kasaribada Venkatachalapti Rao v. Maddipatla Kameswaramma I L R 47 Mad. 151 is a meagrely argued case and does not come to close quarters with the reasoning in Hukam Chand Boid v. Kamalanand Singh I L R 33 Cal.

927. The reference to the American authorities by Mookerjee J. in Hukam Chand Boid v. Kamalanand Singh I L R 33 Cal. 927 is brushed aside on the ground that in some States in America the rule is that the filling of an appeal operates as a supersedeas and has the effect of dapriv-.. ing the executing Court of its jurisdiction to execute the decree. The law in the United States is that in most, if not all jurisdictions super sedeas and stay of proceedings are the subject of statutory provision, and the rule very generally obtains that an appeal or writ of error does not per se operate as supersedeas, and that in order that it may so operate the Court must so order, or a bond or other security must be given, or other conditions complied with, according to the provisions of the statute. A stay usually operates upon all subsequent proceedings, within the purpose of the stay order. However, it does not affect the binding force of the judgment itself, and of course does not discharge the obligation. If a sale of property is stayed, a sale during the stay is void (vide 3 Corpus Juris. 1273 and 533). The American case Buffandeau Edmondson (1851) 17 California 436) relied on by Mookerjee J. in Hukam Chand Boid v. Kamalanand Singh (I L R 33 Cal. 927) was a case from California where the rule is that the mere perfecting of an appeal does not operate as a supersedeas unless so ordered by the Appellate Court. Seshagiri Ayyar J. was, therefore, wrong in Kasaribada Venkatechalapati Rao v. Kaddipatia Kameswaramma I L R Mad. 151, in distinguishing it on the supposed ground that under the law under which it was decided an appeal operates as a supersedeas and brings about an automatic stay of execution proceedings. If the American law had been as stated by that learned judge there would have been no reference in the judgment of Baldwin J. in that case to an order of the appellate Court but only to the act of the party i.e., the preferring of the appeal. The principle of the American cases and the English cases is in my humble judgment relevant to a determination of the point before us. I consider that both on principle and authority as well as on a plain cons truction of Order XLI Rule 5 the answer to the question referred is that a stay order under Order XLI Rule 5 operates from the time that such order is made and not from the time it is communicated to the executing Court. MUHAMMAD SHARIF, J.-I agree. CORNELIUS, J.-I agree. A. H. Reference announced.